The Substantive Dimension of Indigenous Consultation in the Environmental Impact Assessment System:

An Analysis in Light of the Third Environmental Court’s Judgment of March 11, 2025 (Case R-29-2023)

Abstract

This commentary analyzes the ruling of the Third Environmental Court, which had the opportunity to address substantive issues regarding the rights of indigenous peoples in the context of consultation in environmental impact assessments. The case was of interest in determining the scope of good faith in the consultation process and the standards that are required of the State under this principle. However, the Third Environmental Court adopted a purely procedural stance on the consultation, emptying it of substantive content, which proved to be inconsistent with the general principles of administrative law and with the Court's own case law accepting similar allegations from other actors. It will be demonstrated that, apart from the duty of good faith established in international law, domestic law requires the administration to consider the interests and background of the consultation process prior to making a decision in a particular direction. Only in this way can indigenous consultation be operationalized as a right and not merely as a procedure.