INDIGENOUS AND TRIBAL PEOPLES’ RIGHTS OVER THEIR

ANCESTRAL LANDS AND NATURAL RESOURCES

 

Norms and Jurisprudence of the Inter-American Human Rights System

 

VIII.    INDIGENOUS AND TRIBAL PEOPLES’ RIGHTS OVER NATURAL RESOURCES

 

179.          Many indigenous and tribal peoples live in areas rich in living and non-living resources, including forests that contain abundant biodiversity, water, and minerals.  Historically, the desire of non-indigenous society for such resources has resulted in the removal, decimation or extermination of many indigenous communities. Today, the survival and integrity of the Hemisphere’s remaining indigenous and tribal peoples requires recognition of their rights to the resources found on their lands and territories on which they depend for their economic, spiritual, cultural, and physical well-being. 

 

180.          In several countries of the region, constitutional or legislative provisions assign ownership of sub-surface mineral and water rights to the State.  The Inter-American human rights system does not preclude this type of measure; it is legitimate, in principle, for States to formally reserve for themselves the resources of the subsoil and water.  This does not imply, however, that indigenous or tribal peoples do not have rights that must be respected in relation to the process of mineral exploration and extraction, nor does it imply that State authorities have freedom to dispose of said resources at their discretion.  On the contrary, Inter-American jurisprudence has identified rights of indigenous and tribal peoples that States must respect and protect when they plan to extract subsoil resources or exploit water resources; such rights include the right to a safe and healthy environment, the right to prior consultation and, in some cases, informed consent, the right to participation in the benefits of the project, and the right of access to justice and reparation. In the following sections, their content and modes of application are explained in detail.

 

A.        General Considerations

 

181.          Indigenous and tribal peoples have property rights over the natural resources which are present in their territories. The Inter-American human rights system’s jurisprudence on indigenous peoples’ right to communal property has explicitly incorporated, within the material scope of this right, the natural resources traditionally used by indigenous peoples and linked to their cultures, including uses which are both strictly material and other uses of a spiritual or cultural character. For the Inter-American human rights system, this is a necessary consequence of the right to territorial property: from the right to use and enjoy territory in accordance with indigenous and tribal peoples’ traditions and customs, the right to the natural resources which are both in and within the ancestral lands is a necessary derivation,[488] including the specific rights of indigenous peoples over the natural resources of the subsoil which will be explained in detail below. For the Inter-American Court, indigenous peoples’ members’ “right to use and enjoy their traditionally owned lands necessarily implies a similar right with regards to the natural resources that are necessary for their survival”.[489] In general terms, by virtue of their right to property, indigenous and tribal peoples and their members have the right “to use and enjoy the natural resources that lie on and within their traditionally owned territory”.[490]

 

182.          The property rights of indigenous and tribal peoples thus extend to the natural resources which are present in their territories, resources traditionally used and necessary for the survival, development and continuation of the peoples’ way of life.[491]  For the Inter-American human rights system, resource rights are a necessary consequence of the right to territorial property.[492]  According to the Inter-American Court, “members of tribal and indigenous communities have the right to own the natural resources they have traditionally used within their territory for the same reasons that they have a right to own the land they have traditionally used and occupied for centuries. Without them, the very physical and cultural survival of such peoples is at stake.[493][494] Hence the need to protect indigenous and tribal peoples’ rights over the natural resources they have traditionally used; that is, “the aim and purpose of the special measures required on behalf of the members of indigenous and tribal communities is to guarantee that they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected by States.[495]  States must take into consideration that “the culture of the members of the indigenous communities directly relates to a specific way of being, seeing, and acting in the world, developed on the basis of their close relationship with their traditional territories and the resources therein, not only because they are their main means of subsistence, but also because they are part of their worldview (…), and therefore, of their cultural identity.”[496]  This corresponds to the notion of indigenous territoriality elaborated by ILO Convention No. 169 and the United Nations Declaration on the Rights of Indigenous Peoples, by which indigenous rights to property extend to the natural resources that indigenous peoples use as part of their traditional economies or which have cultural, spiritual or ceremonial uses.

 

183.          As explained by the Inter-American Court, “due to the inextricable connection members of indigenous and tribal peoples have with their territory, the protection of their right to property over such territory, in accordance with Article 21 of the Convention, is necessary to guarantee their very survival. Accordingly, the right to use and enjoy their territory would be meaningless in the context of indigenous and tribal communities if said right were not connected to the natural resources that lie on and within the land.  That is, the demand for collective land ownership by members of indigenous and tribal peoples derives from the need to ensure the security and permanence of their control and use of the natural resources, which in turn maintains their very way of life.  This connectedness between the territory and the natural resources necessary for their physical and cultural survival is precisely what needs to be protected under Article 21 of the Convention in order to guarantee the members of indigenous and tribal communities’ right to the use and enjoyment of their property.  From this analysis, it follows that the natural resources found on and within indigenous and tribal people’s territories that are protected under Article 21 are those natural resources traditionally used and necessary for the very survival, development and continuation of such people’s way of life.”[497]  The Court has identified in concrete cases the natural resources present within ancestral territory that are important to the traditional way of life, and therefore protected by the right to property.[498]

 

184.          In connection with this, the cultural rights of an indigenous people may encompass traditional activities related to natural resources, such as fishing or hunting.[499]  The IACHR has also noted that among indigenous communities, the life of their members “fundamentally depends” on the subsistence activities – agriculture, hunting, fishing, gathering – that they carry out in their territories,[500] and that therefore, an indigenous community’s “relations to its land and resources are protected by other rights set forth in the American Convention, such as the right to life, honor, and dignity, freedom of conscience and religion, freedom of association, rights of the family, and freedom of movement and residence.[501] The preservation of the distinctive connection between indigenous and tribal peoples and the natural resources they have traditionally used and are linked to their culture “is fundamental to the effective realization of the human rights of indigenous peoples more generally and therefore warrants special measures of protection.”[502]

 

185.          Insofar as indigenous and tribal peoples have property rights over the natural resources present in their ancestral territories, States must adopt effective measures to secure those rights,[503] measures which must be adequate for their full guarantee, in accordance with the traditional use and occupation patterns.  Recognition of indigenous customary law by State authorities in general, and in particular by the Courts, is therefore necessary for indigenous and tribal peoples to be able to claim their rights over natural resources, and for recognition of their ancestral possession.[504] The State’s failure to adopt such measures violates articles 1 and 2 of the American Convention.[505]

 

186.          As with the right to territorial property in general, indigenous and tribal peoples’ right to property over the natural resources may not be legally extinguished or altered by State authorities without the peoples’ full and informed consultation and consent, or without complying with the general requirements established for cases of expropriation,[506] and with the other legal safeguards of indigenous territorial property.  Compliance with the requirements for carrying out expropriations is one of the elements that must be applied whenever the State decides to evaluate undertaking development or investment plans or projects, or granting concessions for the exploration or exploitation of natural resources in indigenous territories, as explained below.

 

187.          Rights over natural resources are not conditioned on the existence of formal title to property, nor to the finalization of the delimitation or demarcation procedures, but instead “exist even without State actions which specify them,”[507] given that such peoples have “communal property rights to land and natural resources based on traditional patterns of use and occupation of ancestral territory.”[508]  This entails the application of the natural resource property safeguards to the communities that lack a real property title. States violate indigenous peoples’ right to property when they grant concessions for the exploration or exploitation of the natural resources present in ancestral territories which have not been titled, delimited or demarcated.[509]  Consequently, States are bound, by virtue of Article XXIII of the American Declaration of the Rights and Duties of Man, to abstain from “granting logging and oil concessions to third parties to utilize the property and resources that could fall within the lands which must be delimited, demarcated and titled or otherwise clarified and protected, in the absence of effective consultations with and the informed consent of the [respective] people;”[510] an identical obligation is imposed by Article 21 of the American Convention.[511]

 

188.          Indeed, one of the problems which has recurred in the individual case mechanism before the organs of the Inter-American system is that of indigenous communities who, lacking a real title to property over their traditional lands and territories, are adversely affected by the implementation of plans for investment or natural resource development on their ancestral lands and territories.  As already indicated, the Inter-American system’s jurisprudence deems the procedures for delimitation, demarcation and granting of title over indigenous lands a merely formal recognition of pre-existing property rights for purposes of guaranteeing their effective protection from third parties.  Given that indigenous property rights pre-exist their formalization through the State mechanisms for granting of title, the implementation of plans for the investment or development of natural resources which are likely to directly or indirectly affect said land and resources must comply with the procedural and substantive safeguards respecting property rights.  Indigenous and tribal peoples also have the right to be protected by the State from conflicts with third parties over projects for the exploration and exploitation of natural resources in their ancestral territories, particularly when such conflicts have been caused by the delay or absence of territorial titling and demarcation.[512] 

 

189.          As discussed in detail below, States have the obligation of attending indigenous and tribal peoples’ land claims, through the granting of title or other mechanisms to recognize communal property, before authorizing any development or investment plan which can affect these peoples’ property rights over natural resources. In the Saramaka case, the Inter-American Court ordered the State to delimit, demarcate and grant title over the people’s traditional territory before authorizing new plans for investment or development of natural resources which can affect such territory.[513]  The IACHR has also held that States are obliged to “abstain from any acts that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographic area occupied and used by the [respective] people,”[514] until such time as title is granted. The IACHR has also held that failure to adopt State measures to guarantee indigenous communities’ rights over natural resources in accordance with their traditional use and occupation patterns is a violation of Articles 1.1 and 2 of the American Convention on Human Rights.[515]  Granting concessions for the exploration or exploitation of natural resources in indigenous territories that have not been titled, demarcated or protected by the State, without complying with the requirements of prior consultation and other applicable safeguards, violates Articles 1 and 2 of the American Convention on Human Rights.[516]

 

B.        The Right to Environmental Integrity

 

190.          Although neither the American Declaration of the Rights and Duties of Man, nor the American Convention on Human Rights, contain express references to the protection of the environment, several fundamental rights require, as a necessary precondition for their enjoyment, a minimum environmental quality, and are profoundly affected by the degradation of natural resources.  The IACHR has emphasized that there is a direct relationship between the physical environment in which persons live, and the rights to life, security and physical integrity: “The realization of the right to life, and to physical security and integrity is necessarily related to and in some ways dependent upon one's physical environment.  Accordingly, where environmental contamination and degradation pose a persistent threat to human life and health, the foregoing rights are implicated.”[517]

 

191.          Both the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights reflect a priority concern with the preservation of individual health and welfare, legal interests which are protected by the interrelation between the rights to life, security of person, physical, psychological and moral integrity, and health,[518] and thereby refer to the right to a healthy environment.

 

192.          As explained by the IACHR,[519] the critical link between human beings’ subsistence and the environment has been recognized in other international treaties and instruments that bind several States of the Americas, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights; the Amazon Cooperation Treaty; the World Charter for Nature; the Convention for the Protection of Flora, Fauna and Natural Scenic Beauties of America; the Rio Declaration on Environment and Development; and the Convention on Biological Diversity.  Both ILO Convention No. 169 and the United Nations Declaration on the Rights of Indigenous Peoples incorporate specific provisions on the protection of the environment of indigenous territories.[520]  At the Inter-American Level, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), which has been signed or ratified by several countries in the region[521] and entered into force in November 1999, states in Article 11, on the right to a healthy environment: “1. Everyone shall have the right to live in a healthy environment and to have access to basic public services. // 2. The States Parties shall promote the protection, preservation, and improvement of the environment.”

 

193.          These provisions are directly relevant for the interpretation of the Inter-American human rights instruments, by virtue of the evolutionary and systematic interpretive approach which applies to the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights.  Thus, both the IACHR and the Inter-American Court have articulated a set of State obligations related to the preservation of an environmental quality which allows for the enjoyment of human rights. State members of the OAS must prevent the degradation of the environment in order to comply with their human rights obligations in the framework of the Inter-American system.

 

194.          In relation to indigenous and tribal peoples, the protection of the natural resources that are present in ancestral territories, and of such territories’ environmental integrity, is necessary to secure certain fundamental rights of their members, such as life, dignity, personal integrity, health, property, and privacy or information.  These rights are directly affected whenever pollution, deforestation, contamination of waters, or other significant environmental damage occurs in ancestral territories.  This implies that the State must undertake preventive and positive action aimed at guaranteeing an environment that does not compromise indigenous persons’ capacity to exercise their most basic human rights.  In this line, the IACHR has explained that the right to life protected by both the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights “is not (…) limited to protection against arbitrary killing. States Parties are required to take certain positive measures to safeguard life and physical integrity. Severe environmental pollution may pose a threat to human life and health, and in the appropriate case give rise to an obligation on the part of a state to take reasonable measures to prevent such risk, or the necessary measures to respond when persons have suffered injury.”[522]

 

195.          The link between the protection of the environment and respect for human dignity has also been emphasized by the IACHR:  “The American Convention on Human Rights is premised on the principle that rights inhere in the individual simply by virtue of being human. Respect for the inherent dignity of the person is the principle which underlies the fundamental protections of the right to life and to preservation of physical well-being. Conditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be respected as a human being.”[523]  The IACHR has also underlined the direct link between the preservation of environmental integrity and access to livelihood sources; citing the World Charter for Nature, it has held that “mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients."[524]

 

196.          The IACHR has further recognized the link between the protection of the environment and the right to health.  In 1983, in its report on the situation of human rights in Cuba, the IACHR recommended that the State adopt specific measures to protect the environment in order to comply with its obligations appurtenant to the right to health, explaining that a healthy environment is essential for a healthy population, and noting that factors such as water provision, basic sanitation and hygiene services, and waste management bear an important impact in this regard.[525]

 

197.          Effective protection of the natural resources present in indigenous and tribal territories requires that States guarantee their members the exercise of certain human rights of a procedural nature, most importantly, access to information, participation in decision-making, and access to justice.  As explained by the IACHR, in contexts of harm or threat to the environment, “protection of the right to life and physical integrity may best be advanced through measures to support and enhance the ability of individuals to safeguard and vindicate those rights.  The quest to guard against environmental conditions which threaten human health requires that individuals have access to: information, participation in relevant decision-making processes, and judicial recourse.”[526] From this perspective, the guarantee and exercise of the human rights to participation, information and access to justice constitute necessary means to attain the ultimate objective of environmental preservation.  As explained in the following sections, the scope of each one of these three rights in relation to the protection of the natural resources of indigenous or tribal territories has been developed in detail by Inter-American jurisprudence, in such a way that they constitute, in themselves, mandatory requirements for States.

 

C.        The Right to Effective Implementation of the Existing Legal Standards

 

198.          Authorities have the duty, as part of the rule of law, to implement the national and international environmental protection standards that the State has enacted or accepted; this positive obligation of States is part of their general obligation to implement and enforce their own laws in order to protect the human rights of all persons, including indigenous or tribal peoples and their members.  States must adopt measures to ensure that recognition of indigenous and tribal peoples’ territorial rights in their constitutions and in the international treaties to which they are parties, is incorporated in a cross-cutting manner in their domestic law, including in relation to development projects.[527]  At the same time they have the obligation to secure the effective implementation and enforcement of the provisions they adopt, and of the international human rights law provisions that bind them.

 

199.          In its country reports, the IACHR has celebrated some legal advances in the constitutional recognition and legislative development of the right to prior consultation, in the process of socio-environmental monitoring of extractive activities, and in the sustainable development of industries such as the oil and gas sector. In this regard, it has expressed that it “hopes to obtain information on the implementation mechanisms for this legal framework and on their results in effectively safeguarding the right to prior consultation.”[528]

 

200.          As part of the generic obligation to implement and enforce legal measures, States must ensure compliance with their environmental and criminal law and regulations in relation to projects for the exploration and exploitation of natural resources in indigenous and tribal peoples’ territories, and impose the sanctions foreseen in cases of non-compliance.[529]  The IACHR has explained that, in the context of environmental pollution resulting from extractive activities, “the right to life and the protection of the physical integrity of the individual are norms of an imperative nature.  Article 2 of the American Convention requires that where these rights are not adequately ensured through legislative and other means, the State must take the necessary corrective measures. Where the right to life, to health and to live in a healthy environment is already protected by law, the Convention requires that the law be effectively applied and enforced.”[530]

 

201.          Compliance with the State duty to implement and enforce existing environmental standards is required in order for extractive projects not to compromise the exercise of human rights: “The Commission recognizes that the right to development implies that each state has the freedom to exploit its natural resources, including through the granting of concessions and acceptance of international investment. However, the Commission considers that the absence of regulation, inappropriate regulation, or a lack of supervision in the application of extant norms may create serious problems with respect to the environment which translate into violations of human rights protected by the American Convention.”[531]  An integral part of the process of effective enforcement of the law in this context, is for the State “to take the measures necessary to ensure that the acts of its agents (…) conform to its domestic and Inter-American legal obligations.”[532]

 

202.          Likewise, the IACHR has underscored that States who ratify ILO Convention No. 169 must guarantee its cross-cutting incorporation into the legislation that regulates the entire process of design, concession and implementation of projects for the exploration and exploitation of natural resources in indigenous territories; and at the same time must adopt measures to guarantee the effective application of such legislation, taking into account that the lack of regulatory development is not an excuse for failure to comply with the application of Convention No. 169.[533] States must apply adequate mechanisms to follow-up and control compliance, by the authorities, with the rights and guarantees they agreed to respect upon ratification of Convention No. 169.[534]

 

203.          The State duty to apply the environmental protection provisions in force gains special importance vis-a-vis non-State actors whose conduct that is harmful for natural resources.  State authorities have clear international obligations to enforce their own standards and regulations, non-compliance with which may incur their international responsibility.  In practice, States have resorted to different instruments, including the establishment of quality, production or emissions standards; licensing or regulation of dangerous activities; the provision of economic incentives or disincentives; the sanction of particularly harmful activities through criminal law; or the creation of private liability regimes to disincentivate and compensate environmental damage.[535] Whichever options are chosen, enforcement of the environmental protection measures in relation to private parties, in particular of extractive companies and industries, is required to avoid the State’s international responsibility for violating the human rights of indigenous or tribal populations affected by environmentally destructive activities.[536]

 

D.        State Obligations in the Context of Development and Investment Projects and Extractive Concessions over Natural Resources that Affect Ancestral Territories

 

204.          The States of the Americas, and the populations that compose them, have the right to development. Such right to development “implies that each State has the freedom to exploit its natural resources, including through the granting of concessions and acceptance of international investment,”[537] but development must necessarily be compatible with human rights, and specifically with the rights of indigenous and tribal peoples and their members.  There is no development as such without full respect for human rights.  This imposes mandatory limitations and duties on State authorities. In particular, development must be managed in a sustainable manner, which requires that States ensure protection of the environment, and specifically of the environment of indigenous and tribal ancestral territories.  As the IACHR has explained, “the norms of the Inter-American human rights system neither prevent nor discourage development; rather, they require that development take place under conditions that respect and ensure the human rights of the individuals affected. As set forth in the Declaration of Principles of the Summit of the Americas: ‘Social progress and economic prosperity can be sustained only if our people live in a healthy environment and our ecosystems and natural resources are managed carefully and responsibly.’”[538]

 

1.        Impact of Development and Investment Plans or Projects, and of Extractive Concessions
that Affect the Environment

 

205.          Infrastructure or development mega-projects, such as roads, canals, dams, ports or the like, as well as concessions for the exploration or exploitation of natural resources in ancestral territories, may affect indigenous populations with particularly serious consequences, given that they imperil their territories and the ecosystems within, for which reason they represent a mortal danger to their survival as peoples, especially in cases where the ecological fragility of their territories coincides with demographic weakness.[539]  The impact of these activities upon indigenous or tribal peoples’ socio-cultural integrity has also been broadly documented by the IACHR.

 

206.          Thus, extractive concessions in indigenous territories, in having the potential of causing ecological damage, endanger the economic interests, survival, and cultural integrity of the indigenous communities and their members, in addition to affecting the exercise of their property rights over lands and natural resources.  The activities of logging companies in indigenous or tribal peoples’ territories, for example, are highly destructive and produce massive damage to the forest and its ecological and cultural functions, causing water pollution, loss of biodiversity, and the spiritual disruption of the forest[540] to the detriment of indigenous and tribal peoples.[541]

 

207.          International human rights organs pay specific attention to the consequences to indigenous peoples’ rights of environmental contamination caused by extractive activities and other development or investment projects.[542]  In recent years, the organs of the Inter-American system have witnessed an exponential growth in petitions alleging violations of indigenous peoples’ rights as a consequence of the implementation of development or investment plans or projects or exploration and exploitation of natural resources in their territories.

 

208.          The losses caused indigenous peoples’ traditional territories as a result of colonization and the extension of economic exploitation (agricultural, cattle growing, timber and others) result in major processes of environmental deterioration and disintegration of the communities of affected peoples[543] as they prevent the members of indigenous communities from carrying out their traditional livelihood activities. Among the members of the indigenous and tribal peoples affected in their health, basic subsistence activities and environment as a consequence of development projects, special attention must be paid to especially vulnerable persons, including children, women of fertile age and the elderly.[544]

 

209.          An important gap exists in the regulation of key aspects of the protection of indigenous property rights in the context of exploitation of natural resources in indigenous territories.  A series of structural barriers also impede effective implementation of the existing legal provisions.  As a result, development and investment plans and projects in indigenous or tribal territories, and concessions for the exploration and exploitation of natural resources, have been found to result in multiple violations of individual and collective human rights, including the right to life in conditions of dignity (violated whenever development projects cause environmental contamination, generate noxious effects upon basic subsistence activities and affect the health of the indigenous and tribal peoples who live in the territories where they are implemented).[545]  The IACHR and Court have also found violations stemming from “adverse effects on health and production systems; changes in domestic migration patterns; a decline in the quantity and quality of water sources; impoverishment of soils for farming; a reduction in fishing, animal life, plant life, and biodiversity in general, and disruption of the balance that forms the basis of ethnic and cultural reproduction,” all taking place where the mining, timber or oil industries develop their projects.[546]  Concessions, together with the State acts that relate to them, have been considered violations of the right to property protected by the American Convention,[547] and other human rights.[548]

 

210.          In this regard, the IACHR has reiterated that it “acknowledges the importance of economic development for the prosperity of the populations of this Hemisphere;”[549] but “at the same time, development activities must be accompanied by appropriate and effective measures to ensure that they do not proceed at the expense of the fundamental rights of persons who may be particularly and negatively affected, including indigenous communities and the environment upon which they depend for their physical, cultural and spiritual well-being.”[550]

 

211.          The environmental harm from which indigenous and tribal peoples have a right to be protected is that which is caused directly in their territory, or derived from the impact of other concessions.[551]  The Inter-American Court has established that there is a violation of Article 21 of the Convention, in conjunction with Article 1.1, whenever the State grants concessions that damage the environment, and such deterioration has a negative impact on the lands and natural resources that indigenous and tribal peoples have traditionally utilized, which are located in whole or in part within the limits of the territory over which they have a right as communal property.[552]  Other types of concessions affect not only the natural resources over which they were granted, but also other resources used by indigenous and tribal peoples for subsistence and trade; such is the case, for example, of some forestry and timber concessions, as explained by the Inter-American Court in the Saramaka case: “when a logging concession is granted, a variety of nontimber forest products, which are used by the members of the Saramaka people for subsistence and commercial purposes, are also affected.”[553]

 

Example: the environmental impact of projects for the extraction of natural resources in ancestral territories, and its serious implications for human rights. The case of the Ecuadorean Amazon

 

In its 1997 report on the situation of human rights in Ecuador, the IACHR described the situation of the indigenous inhabitants of the forested regions of the country’s Interior, which had suffered from development and oil production activities for decades, affecting their capacity to exercise their rights to life and physical security because of grave environmental contamination by the extractive industry. The IACHR made an on-site verification of the conditions under which the oil extraction operations were being carried out, and explained that “oil development and exploitation do, in fact, alter the physical environment and generate a substantial quantity of toxic byproducts and waste. Oil development activities include the cutting of trails through the jungle and seismic blasting. Substantial tracts of land must be deforested in order to construct roads and build landing facilities to bring in workers and equipment. Installations are built, and exploratory and production wells drilled. Oil exploitation then generates byproducts and toxic wastes through each stage of operations: exploratory drilling, production, transportation and refining.” These toxic by-products had been discharged for decades in open or ill-constructed pits, overflowing and spilling into the rivers, streams and groundwater, or seeping into the soil; they had been buried, without properly sealing or lining the pits, causing lixiviation to the environment; they had been burned, without controls over temperature, emissions or other environmental protection measures; they had accidentally spilled; or they had been directly discharged into the waters or soils of the region. The Government conceded that the environment had been damaged by deforestation, erosion, the over-exploitation of resources, and high levels of contamination from oil exploitation and mining.

 

The impact of this situation on human health was documented by the IACHR, which identified serious consequences of the pollution on the health and subsistence of the indigenous population of the Amazon region.  Based on scientific data and other relevant documentation, the IACHR verified that exposure to oil and associated chemical compounds through the skin, by ingestion in food or water, or absorption by the respiratory system, generate noxious effects for human life and health, posing a considerable risk. The IACHR reported that a survey of 21 communities along the Napo and Quinchiyacu Rivers affected by oil development activities, “had found that roughly three fourths of the community members complained of gastro-intestinal problems; half, of frequent headaches; a third of skin problems; and just under a third of other body aches and fevers. It was also noted that various studies done on the effects of oil contamination indicated that affected populations are at a greatly increased risk of cancer and other grave illnesses. The Director of the Coca Hospital has been cited as indicating an increase in

 

infant mortality due to water contamination and accidents related to petroleum, and local health workers have reported a rise in birth defects, juvenile illnesses and skin infections.” The IACHR verified that in general terms “oil development activities have also been linked, directly and indirectly, with problems in food supply and malnutrition”, a situation illustrated by the fact that “the sectors of Orellana, Shushufindi and Sacha, which are centers of petroleum development activity, register the highest indicators of malnutrition in Ecuador.”

 

The IACHR recalled that the Ecuadorean state is obligated to implement its internal legislation and its international commitments in the field of environmental protection; it indicated that although the right to development implies that the State is free to exploit its natural resources and grant the corresponding concessions, the authorities are under the correlative obligation to apply and enforce the legal provisions that protect the rights to life, health and to live in a healthy environment. The lack of regulation, inappropriate regulations or the lack of supervision in the application of the law, can cause serious impacts upon the environment which eventually translate into human rights violations. Therefore, for the IACHR, the Ecuadorean State had the double duty of adopting measures aimed at preventing environmental contamination, and acting in an immediate manner to repair the damages caused to natural resources by extractive and development activities. Likewise, a necessary component in protecting the rights to life and physical integrity of persons is the adoption of measures aimed at increasing their capacity to safeguard and claim their rights, which include access to information, participation in the pertinent decision-making processes, and access to justice through judicial recourses.

 

The IACHR also clarified that its considerations on the impact of oil-extraction activities were equally applicable to other types of extractive activities with noxious effects upon the environment: “While the Commission has analyzed the human rights situation in the Oriente through the example of oil exploitation activities, it must be noted that other types of development activities raise similar factual and legal concerns. One pertinent example concerns the effects of gold mining in the interior. The processes employed involve various types of chemicals, including cyanide and mercury, which may be emitted into streams and rivers. The toxicity of these substances to humans has been thoroughly documented.”

 

2.         State Duty to Prevent Environmental Damage

 

212.          States have an obligation to prevent damage to the environment in indigenous or tribal territories that would affect the enjoyment of their human rights. Fulfillment of this obligation requires adopting the necessary measures to protect indigenous communities’ habitat from ecological deterioration as a consequence of extractive, cattle-raising, agricultural, timber and other economic activities, as well as from the consequences of infrastructural projects, given that such deterioration reduces their traditional capacities and strategies in terms of food, water and economic, spiritual or cultural activities. In adopting these measures, States must place “special emphasis on protecting the forests and waters, which are fundamental for their health and survival as communities.”[554]  In other words, States must “ensure that major development projects in or near indigenous lands or areas of indigenous population, carried out after complying with the requirements of the law, do not cause irreparable harm to the religious, economic or cultural identity and rights of indigenous communities.”[555]  This also applies to projects for the exploitation of natural resources.[556]

 

213.          In more specific terms, the IACHR has demanded that States establish adequate safeguards and mechanisms to ensure that concessions for the exploitation of natural resources do not cause environmental damages that affect the lands or the indigenous communities;[557] and it has prompted them to “take steps to prevent harm to affected individuals through the conduct of its licensees and private actors (…) [and to] ensure that measures are in place to prevent and protect against the occurrence of environmental contamination which threatens the lives of the inhabitants of development sectors.”[558]

 

214.          Within the practice of the organs of the Inter-American system, the IACHR first referred to environmental degradation as a form of violation of indigenous peoples’ collective rights, and to the state duty to prevent such degradation, in its 1997 report on Ecuador. In such report, the IACHR paid particular attention to the situation of the Huaorani, the Cofán, the Siona, the Achuar, the Shuar, the Quichua of Sucumbíos and Pastaza, and other indigenous peoples of the Ecuadorean interior as a consequence of the exploitation of oil and other development activities in their traditional territories, recommending the State to put in place adequate measures or protection before the environmental damage is caused.[559]

 

215.          The need to protect indigenous peoples’ environment has also been taken into account by the organs of the Inter-American system in granting provisional or precautionary measures, thereby assuming that the potentially noxious effects of certain activities (such as illegal logging or the deposit of toxic wastes or dangerous materials) pose serious threats that simultaneously affect the life and physical integrity of the members of the communities, and their collective survival, associated to the effective exercise of their right to property over lands and natural resources.

 

3.         State Duties of Immediate Action: Suspension, Reparation, and Prevention of Further Damages

 

216.          Whenever significant ecological or other harm is being caused to indigenous or tribal territories as a consequence of development or investment projects or plans or extractive concessions, these projects, plans or concessions become illegal and States have a duty to suspend them, repair the environmental damage, and investigate and sanction those responsible for the harm.

 

217.          The IACHR has established that priority must be given to the rights to life and integrity of indigenous and tribal peoples in these cases.  As a consequence, they are entitled to immediate suspension of the execution of the development or investment plans or projects or of projects for the exploration and exploitation of natural resources which threaten these rights.[560] The IACHR has also underscored the State obligation to implement, in the framework of projects for the exploration or exploitation of natural resources in indigenous or tribal peoples’ territories, participation mechanisms for determining the environmental damages which have been caused and their impact upon such peoples’ basic subsistence activities.  Said participation mechanisms must allow for the immediate suspension of the execution of the projects that bear an impact upon life or personal integrity; they must guarantee the imposition of the pertinent administrative or criminal sanctions, and they must allow for the determination and materialization of indemnities for any damages to the environment and basic subsistence activities which are being caused.[561]  Chapters IX and X of the present Study detail the participatory and remedial rights in this context.

 

218.          In connection with the obligation to repair the environmental damages which have been caused, the IACHR has indicated that indigenous and tribal peoples whose members are affected by environmental contamination, lack of access to drinking water or exposure to toxic agents derived from projects for the exploration or exploitation of natural resources in their territories, have the right to access the healthcare system


without discrimination.
[562]  Correlatively, States are obliged to “minimize the adverse effects of development projects on indigenous peoples,”[563] and mitigate the damages caused.[564]

 

219.          Finally, the IACHR has explained that a constitutive part of the State’s duties of immediate action in these cases is the obligation of carrying out the necessary investigations to identify those responsible for environmental harm, impose the corresponding sanctions, and proceed to the appropriate measures of reparation: “Where the right to life (…) has been infringed upon by environmental contamination, the Government is obliged to respond with appropriate measures of investigation and redress”.[565]  States that have knowledge of the situation of persons affected in their health, subsistence activities or environment as a consequence of development projects, have the duty to impose the corresponding sanctions for non-compliance with the corresponding environmental and/or criminal legal provisions.[566]  In this regard, it must be borne in mind that, according to the IACHR, indigenous and tribal peoples have the right to participate in the determination of the environmental damages caused by projects for the exploration or exploitation of natural resources that are in course of being implemented, as well as in the determination of the impact upon their basic subsistence activities;[567] they also have the right to participate in the process of determining the indemnity for the damages caused by such exploration or exploitation of natural resources projects in their territories, according to their own development priorities.[568]

 

4.        Special Requirements for the Implementation of Development or Investment Plans or Projects and the Granting of Extractive Concessions by the State in Ancestral Territories

 

220.          In evaluating proposed development or investment plans or projects, or the granting of extractive concessions, States must take into account, as a primary consideration, the indigenous communities that inhabit the respective territories, and their traditional modes of land tenure.[569]  For the Inter-American Court, the term “development or investment plan” refers to “any proposed activity that may affect the integrity of the lands and natural resources within the territory of the […] people, particularly any proposal to grant logging or mining concessions.”[570]

 

221.          The language used by the Inter-American Court refers to limitations caused by “development or investment” plans or projects, category that encompasses those which are aimed at increasing or improving the productive or public utilities infrastructure, including the construction of routes for transportation and communication of persons, merchandise, goods and services (i.e. the construction of pipelines); the construction of dams or of educational, sanitation or military infrastructure, inter alia; as well as the extraction of natural resources.

 

222.          In addition, other modes of affecting the right to property trigger these special safeguards and the State’s protective obligations, such as the establishment of protected natural areas over indigenous territories. Indeed, in some cases the establishment of protected natural areas can be a form of limitation or deprivation of indigenous peoples’ right to the use and enjoyment of their lands and natural resources, derived from the State’s unilateral imposition of regulations, limitations, conditions and restrictions upon said use and enjoyment for reasons of public interest, in this case the conservation of nature.[571] 

 

223.          The approval by States of plans for development or investment or exploitation of natural resources often affects indigenous peoples’ capacity to use and enjoy their lands and other natural resources present in their traditional territories.  The organs of the system have been particularly careful to seek a balance between the right to indigenous communal property and States’ legitimate interest in the sustainable exploitation of the natural resources of their property. In fact, both the American Convention and the American Declaration clearly visualize the right to property not as an absolute one, but as a right that may be limited for reasons of public utility or social interest.

 

224.          In effect, “Article 21 of the Convention does not per se preclude the issuance of concessions for the exploration and exploitation of natural resources in indigenous or tribal territories.”[572]  For the Inter-American Court, while it is true that all exploration and extraction activity in indigenous or tribal territory could affect, to a greater or lesser degree, the use and enjoyment of some natural resources traditionally used for the people’s subsistence, “it is also true that Article 21 of the Convention should not be interpreted in a way that prevents the State from granting any type of concession for the exploration and extraction of natural resources within [indigenous or tribal] territory.”[573]  The right to property is not absolute, but “may be restricted by the State under very specific, exceptional circumstances.”[574]

 

225.          In accordance with the above, the American Convention establishes safeguards and limitations regarding the State’s right to award extractive concessions or approve development or investment plans or projects that restrict the use and enjoyment of indigenous peoples’ natural resources or affect their territory.[575]  For purposes of granting extractive concessions or undertaking development or investment plans or projects over natural resources in indigenous or tribal territories, the Inter-American Court has identified three mandatory conditions that apply when States are considering approval of such plans or projects: (a) compliance with the international law of expropriation, as reflected in Convention Article 21; (b) non-approval of any project that would threaten the physical or cultural survival of the group; and (c) approval only after good faith consultations –and, where applicable, consent-, a prior environmental and social impact assessment conducted with indigenous participation, and reasonable benefit sharing.  These requirements “are consistent with the observations of the Human Rights Committee, the text of several international instruments, and the practice in several States Parties to the Convention.”[576] They are equally consistent with the United Nations Declaration on the Rights of Indigenous Peoples.[577]

 

226.          These requirements apply in several circumstances.  Firstly, when the “natural resource is one that has been traditionally used by the members of the [corresponding] people in a manner inextricably related to their survival”.[578]  Secondly, when the project may affect other natural resources that are critical for their physical and cultural survival.[579]

 

227.          Compliance with these requirements is mandatory, even if domestic constitutional or legislative provisions reserve for the State ownership of the living, water, and subsoil resources in indigenous territories.[580] Compliance with these requirements is indispensable, even in the exceptional cases of commercial exploitation concessions granted to individual members of the indigenous or tribal people,[581] although neither indigenous or tribal peoples or their members require State concessions or authorizations for traditional use and exploitation of their resources.

 

Example:  The special requirements in cases of concessions for exploration or exploitation of natural resources,
or development or investment plans or projects on indigenous lands

 

In the case of the Saramaka People v. Suriname, the Inter-American Court of Human Rights established the criteria that must be applied under Article 21 of the American Convention before granting concessions for the exploration and exploitation of natural resources, or of implementation of development or investment plans or projects on indigenous or tribal lands, in order to determine whether such concessions, plans or projects will affect natural resources linked to the indigenous culture or way of life, and therefore, whether the State duties to comply with the three requirements of participation, environmental and social impact assessment, and benefit sharing, are triggered.

 

First, it must be determined “whether this natural resource is one that has been traditionally used by the members of the Saramaka people in a manner inextricably related to their survival” [par. 144].  In regard to the forest, the Court took into consideration:

·          The Saramaka people’s knowledge of the forests, that is, of the location and variety of the trees they use for different purposes. [par. 144]

·          The Saramaka people’s use of certain types of trees for different purposes: construction of boats and canoes for transportation; roofs for the houses; fruits for consumption; use of trees for other subsistence purposes. [par. 144]

·          The way in which the members of the Saramaka people respect and care for the forest.  The  Court established that they enter the forest to obtain the wood they need for their purposes without destroying the environment. [par. 144]

·          The fact that the Saramaka also depend on the extraction of wood as part of their economic structure and for subsistence purposes.
[par. 145]

 

Based on these findings, the Court held: “This evidence shows that the members of the Saramaka people have traditionally harvested, used, traded and sold timber and non-timber forest products, and continue to do so until the present day. Thus, in accordance with the above analysis regarding the extraction of natural resources that are necessary for the survival of the Saramaka people, and consequently, its members, the State should not have granted logging concessions within Saramaka territory unless and until the three safeguards of effective participation, benefit-sharing, and prior environmental and social impact assessments were complied with” [par. 146]. In addition, the conditions set forth in Article 21 of the Convention for cases of expropriation, and the requirement of not affecting the subsistence of the group and its members, had to be complied with.

 

Second, regarding the gold mining concessions granted in Saramaka territory by the State, the Court analyzed whether they “have affected natural resources that have been traditionally used and are necessary for the survival of the members of the Saramaka people.” [par. 155] It found that, according to the evidence, “the members of the Saramaka people have not traditionally used gold as part of their cultural identity or economic system. Despite possible individual exceptions, members of the Saramaka people do not identify themselves with gold nor have demonstrated a particular relationship with this natural resource, other than claiming a general right to ‘own everything, from the very top of the trees to the very deepest place that you could go under the ground.’” [par. 155]  Even though gold is not a resource of traditional use, the Court explained that its extraction would affect other natural resources which are critical for the physical and cultural survival of the Saramaka people. Therefore, the requirements of Convention Article 21 had to be complied with before granting such a concession: “the State has a duty to consult with them, in conformity with their traditions and customs, regarding any proposed mining concession within Saramaka territory, as well as allow the members of the community to reasonably participate in the benefits derived from any such possible concession, and perform or supervise an assessment on the environmental and social impact prior to the commencement of the project” [par. 155].

 

228.          With regard to concessions which have effectively been granted to third parties within ancestral territory without complying with the requirements derived from Article 21 of the Convention, States must evaluate whether it is necessary to restrict such third parties’ contractual or legal rights in order to preserve the physical and cultural survival of the corresponding people, in light of the Inter-American jurisprudence.[582]

 

a.         Apply the International Law of Expropriation

 

229.          In the first place, States must comply with the requirements established in Article 21 of the American Convention on Human Rights for cases of expropriation.  Every limitation of the content of indigenous peoples’ right to property over their natural resources must respect the general provisions that regulate legal limitations of property for reasons of public interest, that is to say, expropriations.

 

230.          As explained by the Court, “Article 21 of the Convention states that the ‘law may subordinate [the] use and enjoyment [of property] to the interest of society.’ Thus, the Court has previously held that, in accordance with Article 21 of the Convention, a State may restrict the use and enjoyment of the right to property where the restrictions are: a) previously established by law; b) necessary; c) proportional, and d) with the aim of achieving a legitimate objective in a democratic society.[583] In accordance with this Article, and the Court’s jurisprudence, the State will be able to restrict, under certain circumstances, the Saramakas’ property rights, including their rights to natural resources found on and within the territory.”[584] Article 21.2 provides that “[n]o one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.”

 

231.          It is pertinent to recall at this point the clarification made by the Court, in the sense that “the right to obtain compensation under Article 21(2) of the Convention extends not only to the total deprivation of property title by way of expropriation by the State, for example, but also to the deprivation of the regular use and enjoyment of such property.”[585]

 

b.         No Approval of Projects that Threaten the Physical or Cultural Survival of the People

 

232.          The State may not grant a concession or approve a development or investment plan or project that could affect the survival of the corresponding indigenous or tribal people, in accordance with its ancestral ways of life.  In the Inter-American Court’s terms: “[I]n analyzing whether restrictions on the property right of members of indigenous and tribal peoples are permissible, especially regarding the use and enjoyment of their traditionally owned lands and natural resources, another crucial factor to be considered is whether the restriction amounts to a denial of their traditions and customs in a way that endangers the very survival of the group and of its members.”[586]  Under Article 21 of the American Convention, the State may restrict an indigenous or tribal people’s right to use and enjoy their traditionally owned lands and natural resources only when such restriction complies with all the requirements established therein, and when it does not deny their survival as an indigenous or tribal people.[587]  The Human Rights committee in the case of Länsman and other v. Finland,[588] supports this norm: “allowing States to pursue development activities that limit the rights of a minority culture as long as the activity does not fully extinguish the indigenous people’s way of life.”[589]

 

233.          The notion of “survival” is not tantamount to mere physical existence: “The Court emphasized in the Saramaka judgment that the phrase ‘survival as a tribal people’ must be understood as the ability of the people to ‘preserve, protect and guarantee the special relationship that [they] have with their territory’, so that ‘they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected […]’. That is, the term ‘survival’ in this context signifies much more than physical survival.[590]  In similar terms, for the Court, “the term ‘survival’ (…) does not refer only to the obligation of the State to ensure the right to life of the victims, but rather to take all the appropriate measures to ensure the continuance of the relationship of the Saramaka People with their land or their culture.”[591]

 

Example: environmental, epidemiological and socio-cultural sequels of economic development processes in indigenous territories.

The case of the Ecuadorean Amazon.

 

In its 1997 report on the situation of human rights in Ecuador, the IACHR described the impact that development activities had had upon the human rights and the physical and cultural survival of the indigenous peoples of the interior of the country.

 

In the first place, the IACHR described the situation of serious environmental contamination caused by decades of extractive activities, particularly by the oil industry, whose repercussions upon the enjoyment of human rights were referred above. But as the IACHR was informed, the “indigenous peoples of the Ecuadorean Amazon maintain that the effects of oil development and exploitation in the Oriente have not only damaged the environment, but have directly impaired their right to physically and culturally survive as a people.”

 

Thus, the IACHR identified some additional sequels of the oil industry development process which had taken place in the foregoing decades, explaining that “the opening of the traditional lands of Ecuador's Amazonian indigenous peoples to oil exploitation and other development activities has resulted in a number of directly attributable consequences.”

 

First, this process brought along an influx of outsiders and transportation infrastructure to the Amazonian indigenous peoples’ territories: “The oil boom initiated in the interior in late 1960's led to the construction of a network of roads, used to bring in workers and equipment, as well as to construct and service production sites and other facilities, into the heart of what had traditionally been indigenous territory. In this way, oil development opened and exposed the interior in a way that previous development and outside contact had not.” This process was accompanied by a strong colonization initiative promoted by the Government itself: “In addition to the non-native workers brought in to build roads and construct and operate facilities, the opening of roads funneled colonists, land speculators, and loggers into indigenous homelands. In the case of the Oriente, this colonization was encouraged by the State, and in fact deemed a national priority. Settlers typically colonize the initial kilometers fronting both sides of a road. In most cases, controls on spontaneous colonization were either non-existent or ineffectual, leading to the result that wide swaths of non-indigenous settlement now divide blocks of previously indigenous territory. Under the Ley de Colonización de la Region Amazónica, enacted to encourage the settlement and productive use of the Oriente, settlers began moving into a territory much of which was deemed to be "tierras baldías" or unoccupied lands. Legislation to encourage the colonization of the Oriente offered title to settlers who demonstrated their domain over these lands by clearing forest for agricultural uses. Estimates of the number of settlers in the Oriente vary, but appear to be at least 250,000 to 300,000.”

 

Second, as an immediate effect of the entry of non-native inhabitants to indigenous territories, the aboriginal inhabitants of those territories were exposed to illnesses and epidemics that were unknown to them, and for which they lacked immunological defenses or resistance: “The encroachment of colonists, speculators and non-native company workers into previously isolated areas introduced such illnesses as the ‘common cold’ and influenza. Viral diseases have taken a harsh toll, and continue to do so in the case of the individuals and communities who have had less contact with outsiders, such as the Huaorani. Oil company workers with colds enter such areas and infect local inhabitants, who can easily develop pneumonia and die. In other cases, men from indigenous communities work for the oil companies, contract unintroduced illnesses, and import them back into their communities when they return home. While the indigenous peoples of the Amazonian interior have very sophisticated systems for the preservation of their health and well-being, they lack experience with these new diseases.” The IACHR was informed of numerous deaths caused by previously unknown diseases, a result that was also prompted by the lack of accessible medical attention.

 

Third, the process of development of the region caused the displacement of entire indigenous communities: “Oil exploitation activities have proceeded through traditional indigenous territory with little attention to the placement of facilities in relation to existing communities: production sites and waste pits have been placed immediately adjacent to some communities; roads have been built through traditional indigenous territory; seismic blasts have been detonated in areas of special importance such as hunting grounds; and areas regarded as sacred, such as certain lakes, have been trespassed. Many indigenous inhabitants responded to the initial years of development activity by retreating away from development and further into their traditional areas. It is reported that, pursuant to the initial introduction of oil exploitation activities in the area now called Lago Agrio, the last of the indigenous Tetetes were driven away, a circumstance believed to have hastened their extinction as a people.” The Cofán were equally affected: “The Cofan, who now number only a few hundred members, were displaced from their traditional homelands and most now occupy a handful of non-contiguous communities in a portion of their former territory. Development came to their traditional territory, the Upper Aguarico River, in 1970, when the Texaco-Gulf Consortium established a base camp at Santa Cecilia. Roads, production areas, landing strips and the pipeline cut their territory "into ribbons of nationalized infrastructure," and colonists followed. Although the Cofan had been granted title to some 9000 acres in this zone, demarcated accordingly, a road was constructed right through the titled lands.”

 

Finally, the process of development had also been the cause of tensions between the settlers and the indigenous inhabitants of the region: “The pressures resulting from the influx of settlers, and the displacement of a number of communities continues to generate tension and sometimes violent conflict. At the time of the Commission's observation in situ, recent reports received by CONFENIAE indicated that the Siona, the Quichua of Sucumbios and Pastaza, and the Achuar and Shuar had all been experiencing some level of conflict with colonists. The Huaorani and settlers along the local oil road live in close proximity, also with periodic episodes of tension.”

 

The IACHR underscored, as a form of initiating the process of resolution of these problems, the Government’s efforts to grant title to property of some ancestral territories in the region, as well as the pilot project carried out with the Cofán people in the sense of assigning them the management of a portion of their ancestral territory declared as a natural protected area. In spite of this, it also emphasized that many indigenous communities and groups of the interior continued to undergo difficulties in the legalization of their ancestral territories.   

As a conclusion of its analysis, the IACHR held that “the situation of indigenous peoples in the Oriente illustrates, on the one hand, the essential connection they maintain to their traditional territories, and on the other hand, the human rights violations which threaten when these lands are invaded and when the land itself is degraded. (…) For many indigenous cultures, continued utilization of traditional collective systems for the control and use of territory are essential to their survival, as well as to their individual and collective well-being. Control over the land refers both to its capacity for providing the resources which sustain life, and to ‘the geographical space necessary for the cultural and social reproduction of the group.’”. It therefore recalled that “within international law generally, and Inter-American law specifically, special protections for indigenous peoples may be required for them to exercise their rights fully and equally with the rest of the population. Additionally, special protections for indigenous peoples may be required to ensure their physical and cultural survival -- a right protected in a range of international instruments and conventions.”

 

On the grounds of the foregoing considerations, the IACHR recommended the State, inter alia, to adopt the necessary measures to “restrict settlers to areas which do not infringe upon the ability of indigenous peoples to preserve their traditional culture”; to take the measures required to guarantee a significant and effective participation of indigenous representatives in the decision-making processes on issues which, like development, affected their cultural survival; and to take the necessary steps to solve the pending indigenous territorial claims.

 

c.         Participation, Benefit-sharing, and Prior Environmental and Social Impact Assessment

 

234.          A third set of obligatory conditions needed to ensure consistency between development or investment plans or projects or extractive activities, on the one hand, and indigenous natural resource rights, on the other, has three mandatory elements.  According to the Court, “in accordance with Article 1(1) of the Convention, in order to guarantee that restrictions to the property rights of the members of [indigenous or tribal peoples] by the issuance of concessions within their territory does not amount to a denial of their survival as [an indigenous or] tribal people, the State must abide by the following three safeguards: First, the State must ensure the effective participation of the members of the [corresponding] people, in conformity with their customs and traditions, regarding any development, investment, exploration or extraction plan (…) within [ancestral] territory.  Second, the State must guarantee that the [members of the people] will receive a reasonable benefit from any such plan within their territory. Thirdly, the State must ensure that no concession will be issued within [ancestral] territory unless and until independent and technically capable entities, with the State’s supervision, perform a prior environmental and social impact assessment. These safeguards are intended to preserve, protect and guarantee the special relationship that the members of the [respective] community have with their territory, which in turn ensures their survival as a tribal people.”[592]  These three conditions are complementary and concurrent requirements, aimed at guaranteeing survival as indigenous or tribal peoples: “In order to guarantee their survival as a tribal people, the Court established a series of complementary requirements applicable to the Saramaka in particular, and indigenous and tribal peoples in general.”[593]

 

235.          The triple standard set by the Inter-American Court in the Saramaka case (consultation and consent; impact assessment; and benefit sharing) is applicable, in the Court’s terms, to “any development, investment, exploration or extraction plan”[594] which can directly or indirectly affect indigenous peoples’ capacity to effectively use and enjoy their lands, territories and natural resources, in such a way as to entail, in fact, a deprivation or limitation of their right to property.

 

236.          The requirement of consultation and participation is considered in Chapter IX, as it reflects a general duty that applies to all issues concerning indigenous and tribal land and resource rights. 
 

Benefit-Sharing

 

237.          Indigenous and tribal peoples have the right to participate in the benefits derived from projects for the exploration and exploitation of natural resources or from development or investment plans or projects in their territories,[595] as well as from commercial application of their traditional knowledge about the use of such resources. In the Court’s terms, “the second safeguard the State must ensure when considering development or investment plans within [indigenous or tribal] territory is that of reasonably sharing the benefits of the project with the [respective] people.”[596] Consequently, “the State must guarantee that the [members of the affected indigenous or tribal communities] will receive a reasonable benefit from any such plan within their territory.”[597]

 

238.          Reasonable participation of indigenous peoples in the benefits derived from the exploitation of natural resources or the implementation of development or investment plans or projects in their traditional territories is a requirement confirmed by ILO Convention No. 169,[598] and it has also been incorporated into the policies of international financial institutions that relate to indigenous peoples.[599]  The IACHR has emphasized that according to ILO Convention No. 169, indigenous and tribal peoples have a right to participate in the benefits of activities of utilization of their natural resources;[600] States must “ensure, consistent with ILO Convention No. 169, that all projects to build infrastructure or exploit natural resources in the indigenous area or that affect their habitat or culture is processed and decided on with the participation of and in consultation with the peoples interested, with a view to obtaining their consent and possible participation in the benefits.”[601]

 

239.          States have an international obligation to guarantee the participation of indigenous communities in the determination of the benefits to be produced by the proposed plans or projects,[602] through appropriate procedures. Therefore, States must “ensure that such procedures will establish the benefits that the affected indigenous peoples are to receive, and compensation for any environmental damages, in a manner consistent with their own development priorities.”[603]

 

240.          The determination of the beneficiaries must be made in consultation with the corresponding people, and not unilaterally by the State.[604]  In case an internal conflict arises between the members of the corresponding indigenous or tribal people over who can benefit from the development or investment projects, it must be resolved by the people themselves in accordance with their own traditional norms and customs, and not by the State.[605]  In general, as stated by the Court in the Saramaka case, “all issues related to the consultation process with the Saramaka people, as well as those concerning the beneficiaries of the ‘just compensation’ that must be shared, must be determined and resolved by the Saramaka people in accordance with their traditional customs and norms, and as ordered by the Court in its Judgment.”[606]

 

241.          Article 21.2 of the American Convention establishes that the right to property can only be limited, in whole or in part, for reasons of public utility or social interest and “upon payment of just compensation”.  As explained above, this provision refers to the legal institution of forced expropriation and the safeguards that must surround the process. In the Saramaka case, the Court identified participation in the benefits as a specific form of fair compensation stemming from the limitation or deprivation of the right to indigenous communal property: “the Court considers that the right to obtain compensation under Article 21(2) of the Convention extends not only to the total deprivation of property title by way of expropriation by the State, for example, but also to the deprivation of the regular use and enjoyment of such property”,[607] for which reason “in the present context, the right to obtain ‘just compensation’ pursuant to Article 21(2) of the Convention translates into a right of the members of the Saramaka people to reasonably share in the benefits made as a result of a restriction or deprivation of their right to the use and enjoyment of their traditional lands and of those natural resources necessary for their survival.”[608]

 

242.          The Court also emphasized that participation in the benefits is inherent to the right to fair compensation in Article 21: “The concept of benefit-sharing, which can be found in various international instruments regarding indigenous and tribal peoples’ rights, [United Nations Declaration of the Rights of indigenous Peoples, Art. 32.2; ILO Convention No. 169, Art. 15(2)]  can be said to be inherent to the right of compensation recognized under Article 21(2) of the Convention”.[609]

 

243.          Participation in the benefits of a project must not be confused with the provision of basic social services that the State is bound to provide in any case by virtue of its obligations in the field of economic, social and cultural rights.

 

244.          The Inter-American Court has resorted, in this point, to the pronouncements of the Committee on Elimination of Racial Discrimination and the UN Special Rapporteur on the Rights of Indigenous Peoples, with regard to the right to participate in the benefits: “In this sense, the Committee on the Elimination of Racial Discrimination has recommended not only that the prior informed consent of communities must be sought when major exploitation activities are planned in indigenous territories, but also ‘that the equitable sharing of benefits to be derived from such exploitation be ensured.’[610]  Similarly, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples has suggested that, in order to guarantee ‘the human rights of indigenous peoples in relation to major development projects, [States should ensure] mutually acceptable benefit sharing […].’ In this context, pursuant to Article 21(2) of the Convention, benefit sharing may be understood as a form of reasonable equitable compensation resulting from the exploitation of traditionally owned lands and of those natural resources necessary for the survival of the Saramaka people.”[611] 

 

Prior Environmental and Social Impact Assessments

 

245.          A “prior environmental and social impact assessment” [ESIA] must be carried out by “independent and technically capable entities, with the State’s supervision”[612] in the context of investment and development projects and extractive activities in indigenous territories. The ultimate purpose of environmental and social impact assessments is “to preserve, protect and guarantee the special relationship” of indigenous peoples with their territories, and guaranteeing their subsistence as peoples.[613]

 

246.          In general terms, “ESIAs serve to assess the possible damage or impact a proposed development or investment project may have on the property in question and on the community.”[614] States must guarantee that the sustainability of investment or development plans or projects and natural resource exploration and exploitation projects in indigenous and tribal peoples’ territories is “measured in advance, using effective mechanisms of participation for the persons and groups affected, regardless of whether the State has recognized their ownership”.[615] Consequently, as stated by the Inter-American Court in its Saramaka judgment, “the purpose of ESIAs is not only to have some objective measure of such possible impact on the land and the people, but also (…) to ‘ensure that members of the Saramaka people are aware of possible risks, including environmental and health risks, in order that the proposed development or investment plan is accepted knowingly and voluntarily’.”[616]

 

247.          Impact assessments are also prescribed by the provisions of ILO Convention No. 169, Article 7 of which states that “Governments shall ensure that, whenever appropriate, studies are carried out, in co-operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities.”[617]

 

248.          Environmental and social impact assessments are not only project planning instruments that must be taken into account to minimize the negative impacts of development or investment projects in indigenous territories –and, in given cases, for the identification of alternatives-, but they also serve to identify which communal property rights will be affected, and how, by the proposed project. Indeed, the ultimate objective of the process of impact assessments is no other than to identify which are the potential negative impacts of the plan or project in question over indigenous peoples’ capacity to use and enjoy their lands and other resources present in their territories which they have traditionally used for economic, social, cultural or spiritual purposes; in other words: the possible impact upon their right to communal property.  From this perspective, an additional objective of impact assessments is precisely the identification of the rights that correspond, or that might correspond, to indigenous peoples over the lands and natural resources that will be directly or indirectly affected by the investment or development projects at hand.[618]

 

249.          This way, if environmental and social impact assessments identify claims to indigenous communal property that have not been previously registered by the State, the execution of the project should be suspended until said claims have been duly determined through adequate procedures.

 

250.          For the Inter-American Court, Article 21 of the American Convention, in connection with Article 1.1, is violated when the State fails to carry out or supervise environmental and social impact assessments prior to granting the concessions.[619]

 

When to conduct impact assessments

 

251.          The Inter-American Court’s judgment in the Saramaka case establishes that social and environmental impact assessments must be carried out prior to the approval of the respective plans. As explained by the Court, “ESIAs must be completed prior to the granting of the concession, as one of the objectives for requiring such studies is to guarantee the [corresponding people’s] right to be informed about all the proposed projects in their territory. Hence, the State’s obligation to supervise the ESIAs coincides with its duty to guarantee the effective participation of the [respective] people in the process of granting concessions.”[620]

 

Who is responsible for conducting impact assessments

 

252.          The process of environmental and social impact assessments is an obligation of the State, which must carry them out or supervise their realization before emitting the concessions or approving the plans or projects.[621]  Nonetheless, the State may commission said studies to “independent and technically capable entities, with the State’s supervision.”[622] This line of reasoning is fully compatible with the justification of this type of studies, which is none other than to ensure an objective, impartial and technically verifiable assessment, aimed at providing factual data from which a set of consequences may emerge for the approval and, in a given case, the execution of the corresponding plan. For these purposes, it would not be in accordance with the criteria established by the Court, for example, for the process of environmental and social impact assessments to be carried out by the staff or contractors of the concessionary company. Likewise, it stems from the Court’s jurisprudence that the selection of the actors responsible for conducting impact assessments must be made in accordance with technical expertise criteria.

 

253.          Insofar as the process of impact assessments is a State obligation linked to the duty to protect indigenous property, said assessments must be conducted by the State, or under the State’s supervision.[623]  The State authorities’ supervisory task must ensure compliance with the criteria established in the pertinent legal provisions in relation to the contents and conditions of impact assessments.

 

The content of impact assessments

 

254.          Referring to the contents of impact assessments, the Inter-American Court has specified that such studies must be of a “social and environmental” nature. The inclusion of these two elements in its characterization reveals that the type of assessments required by the Court must go further than the strictly environmental impact studies normally required in order to evaluate and mitigate the possible negative impacts upon the natural environment, making it necessary to incorporate the identification of the direct or indirect impact upon the ways of life of the indigenous peoples who depend on those territories and the resources present therein for their subsistence.

 

255.          The term “social”, as a component of impact assessments, must be interpreted in a broad manner, which takes into account the general jurisprudence of the Inter-American system on the right to indigenous property, as well as other applicable international standards.  Insofar as the realization of development or investment plans is conceived as a limitation of the right to indigenous communal property, impact assessments should establish the precise incidence such plans will have upon indigenous peoples’ capacity to use and enjoy their lands and natural resources, in accordance with their own customary law, values, usages and customs.  From this perspective, therefore, the content of ESIAs must refer not only to the impact upon the natural habitat of indigenous peoples’ traditional territories, but also to the impact upon the special relationship that links these peoples to their territories, including their distinct forms of economic subsistence, their identities and cultures, and their forms of spirituality.

 

256.          In this sense, in relation to the content of prior impact assessments, ILO Convention No. 169 establishes that such studies must “assess the social, spiritual, cultural and environmental impact on [the peoples concerned] of planned development activities”.[624]

 

257.          In the first place, the content of environmental impact assessments as such is already considerably standardized in international practice. According to the broadly accepted definition of environmental assessment incorporated into the World Bank Operational Policy OP 4.01, EIAs must “identify and assess the potential environmental impacts of a proposed project, evaluate alternatives, and design appropriate mitigation, management, and monitoring measures.[625]

 

258.          For the Inter-American Court, “in order to comply with the Court’s orders, the ESIAs must conform to the relevant international standards and best practices”.[626] In a footnote, the Court holds that “one of the most comprehensive and used standards for ESIAs in the context of indigenous and tribal peoples is known as the Akwé:Kon Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments Regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities”.[627] The process of implementation of the Biodiversity Convention is therefore particularly relevant for the protection of the rights associated to indigenous property over lands, territories and resources. In 2004, the Conference of the Parties of the Convention adopted the Akwé:Kon Voluntary Guidelines,[628] which reflect the broad content of impact assessments in relation to projects which can affect indigenous peoples.

 

259.          According to the Guidelines, environmental impact assessments must evaluate “the likely environmental impacts of, and [propose] appropriate mitigation measures for, a proposed development, taking into account interrelated socio-economic, cultural and human health impacts, both beneficial and adverse".[629]

 

260.          In second place, the evaluation of social impacts encompasses an assessment of “the likely impacts, both beneficial and adverse, of a proposed development that may affect the rights, which have an economic, social, cultural, civic and political dimension, as well as the well-being, vitality and viability, of an affected community - that is, the quality of life of a community as measured in terms of various socio-economic indicators, such as income distribution, physical and social integrity and protection of individuals and communities, employment levels and opportunities, health and welfare, education, and availability and standards of housing and accommodation, infrastructure, services".[630]

 

261.          The assessment of cultural impact includes an evaluation of “the likely impacts of a proposed development on the way of life of a particular group or community of people, with full involvement of this group or community of people and possibly undertaken by this group or community of people".  In the course of said evaluation, attention must be paid to “the impacts, both beneficial and adverse, of a proposed development that may affect, for example, the values, belief systems, customary laws, language(s), customs, economy, relationships with the local environment and particular species, social organization and traditions of the affected community", as well as the impacts on the "community's cultural heritage including sites, structures, and remains of archaeological, architectural, historical, religious, spiritual, cultural, ecological or aesthetic value or significance".[631]

 

262.          ESIAs must also address the cumulative impact of the existing projects; for the Court, “one of the factors the environmental and social impact assessment should address is the cumulative impact of existing and proposed projects.  This allows for a more accurate assessment on whether the individual and cumulative effects of existing and future activities could jeopardize the survival of the indigenous or tribal people.[632]

 

Identification of alternatives and impact mitigation measures

 

263.          Likewise, ESIAs must identify possible alternatives or, failing such alternatives, measures to mitigate the negative impacts of the investment or development plan.

 

264.          As for the permissible level of impact, the Inter-American Court has held that “what constitutes an acceptable level of impact may differ in each case. Nonetheless, the guiding principle with which to analyze the results of ESIAs should be that the level of impact does not deny the ability of the members of the [corresponding] people to survive as [an indigenous or] tribal people”.[633]

 

265.          The obligation of conducting ESIAs in relation to development or investment plans in indigenous territories evidently responds to a logic of guaranteeing indigenous property rights. Therefore, these studies must not constitute merely formal procedures, but they must lead, insofar as it is technically possible, to specific changes in the design of the development or investment plans whenever the assessments have identified possible negative impacts upon indigenous peoples’ property rights, in the terms described above. In this sense, Article 7.3 of ILO Convention No. 169 provides that “[t]he results of these studies shall be considered as fundamental criteria for the implementation of these activities.”

 

Indigenous peoples’ participation in the process of impact assessments

 

266.          The Court’s judgment in the Saramaka case requires states to secure indigenous peoples’ participation in the process of prior environmental and social impact assessments.[634] This requirement is also included in ILO Convention No. 169, by which impact or incidence studies must be carried out “in co-operation with the peoples concerned”.[635] In general terms, ESIAs “must respect the [corresponding] people’s traditions and culture”.[636]

 

267.          Indigenous peoples’ participation in activities related to the process of ESIAs is a requirement that stems from these assessments’ very nature and content. Insofar as ESIAs are aimed at documenting the possible negative impacts of development or investment plans upon the relationship between indigenous peoples and their traditional territories, the knowledge of the members of indigenous peoples is necessarily required to identify said impacts, as well as for the identification of possible alternatives and mitigation measures.

 

E.         Control and Prevention of Illegal Extractive Activities in Indigenous Territories

 

268.          States are under the obligation to control and prevent illegal extractive activities, such as illegal mining, logging or fishing in ancestral indigenous or tribal territories, and of investigating and sanctioning those responsible for them.  On different occasions, the IACHR has described situations where illegal extraction of natural resources in indigenous territories is taking place, explaining that such activities constitute threats to and usurpations of the effective property and possession of indigenous territories,[637] and that they imperil said peoples’ survival, especially because of their impact upon the rivers, soils and other resources that constitute the main sources of their livelihood.[638]

 

269.          As discussed in Chapter X, indigenous peoples have the right, in conditions of equality, to effective judicial protection from violations of their right to communal property over natural resources. The right of indigenous and tribal peoples and their members to have access to justice in such cases is fully applicable in all of its dimensions whenever the natural resources that are present in their territories are affected.

 

270.          As happens with the other safeguards applicable to the protection of the right to indigenous communal property, in relation to illegal extraction of natural resources in their territories, it is not necessary for indigenous peoples to have a formal title to property in order to be able to have access to the courts to claim the protection of their rights, including reparation for harms suffered.

 

Example of application: impacts of extractive activities upon the rights of indigenous peoples in Venezuela

 

In its 2009 Report on the situation of human rights in Venezuela, the IACHR referred to the development of mining exploitation activities, both legal and illegal, in the south of the country, and expressed its concern over the effects that such activities had upon the indigenous groups of the region, in particular because of their impact upon the rivers and soils, which were the main sources of subsistence of those peoples. The Commission described the information it had received on the granting of concessions to mining companies without consulting the indigenous peoples that inhabit the project areas, in spite of the environmental impact that such projects would have upon their territory; it also reported it had been informed of the practice of illegal mining, and the manner in which it was undermining the survival of the indigenous peoples of the south of Venezuela.

 

Given this state of affairs, the IACHR reminded the State of “its obligation to ensure consultation with and the participation of indigenous peoples when considering any measure that affects their territories” [par. 1058], and recommended that it:

 

(a) promote “participation by indigenous peoples and communities affected by projects for the exploration and exploitation of natural resources by means of prior and informed consultation aimed at garnering their voluntary consent to the design, implementation, and evaluation of such projects, as well as to the determination of benefits and indemnization for damages according to their own development priorities” [par. 1137, Recommendation 5];

 

(b) implement, in the framework of natural resource prospecting and exploitation projects, “participatory mechanisms to assess the extent of environmental damage caused and the impact on basic subsistence activities among indigenous peoples (…) living where such projects unfold. This aims to ensure immediate project suspension when the lives and/or personal security of such individuals are at risk, and to level administrative and criminal sanctions as appropriate” [par. 1137, Recommendation 6];

 

(c) in case projects proceed, “guarantee that those affected will share in the benefits derived” [par. 1137, Recommendation 6];

 

(d) assess and enforce compensation for the environmental damages and the impacts on the basic subsistence activities of the affected indigenous peoples [par. 1137, Recommendation 6]; and

 

(e) “guarantee access to an adequate and effective judicial remedy to address environmental damage collectively, such that, aside from criminal action, mechanisms of a legal nature are available for immediate attention to be focused on circumstances that may cause irreparable damage to groups of individuals.” [par. 137, Recommendation 7]

 

F.         Prevention of the Epidemiological and Socio-cultural Consequences of Development Activities

 

271.          Long-standing historical experiences in the Americas prove that the lack of protection of indigenous peoples’ territorial rights, and the resulting penetration of settlers and infrastructural or extractive projects in their territories, bring about extremely serious consequences in the field of health, given that the entry of inhabitants who are alien to their territories entails the entry of illnesses for which aboriginal populations lack developed immunological defenses.[639]  The epidemics which have been unleashed in this manner among different indigenous peoples of the continent have decimated their population, and in some cases they have brought the corresponding ethnic groups to the point of being at risk of disappearance.

 

272.          The state has the duty to prevent the occurrence of these comprehensive situations of human rights violations, so as to preserve the life and physical integrity of the members of indigenous and tribal peoples, through the adoption of the public health preventive measures which are pertinent in each case. These safeguards are particularly important for indigenous peoples in voluntary isolation or initial contact.

 

Example: the epidemiological and socio-cultural consequences of the lack of protection of indigenous territorial rights.

The case of the Yanomami people of Brazil.

 

The Yanomami indigenous people have inhabited the Orinoco River Basin, in the territories of Venezuela and Brazil, since time immemorial. In the IACHR’s view, the Yanomami’s fight for individual and collective survival is an illustrative example of the complex problems borne by aboriginal populations in the defense and exercise of the most basic rights, especially because their very existence has been affected by the successive penetrations of institutions, projects and alien persons, which have ravaged their life, survival, physical and cultural integrity and environment.

 

The IACHR has issued pronouncements on the situation of the Yanomami people of Brazil on two opportunities. The first one was in 1985, in Resolution 12/85, adopted to decide on a petition filed against the Brazilian State on account of its alleged international responsibility for the people’s situation. The second one was in its 1997 report on the situation of human rights in Brazil. On both occasions, the IACHR described complex patterns of structural violations of human rights, derived from multiple causal factors whose common essence was the lack of protection of the Yanomami’s territorial rights.

 

In its Resolution No. 12/85, the IACHR examined a petition presented by several persons and organizations on behalf of the Yanomami people of Brazil. The IACHR deduced from the evidence it had available: “(a) That on account of the beginning, in 1973, of the construction of highway BR-210 (the Northern Circumferential Highway), the territory occupied for ages beyond memory by the Yanomami Indians was invaded by highway construction workers, geologists, mining prospectors, and farm workers desiring to settle in that territory; (b) That those invasions were carried out without prior and adequate protection for the safety and health of the Yanomami Indians, which resulted in a considerable number of deaths caused by epidemics of influenza, tuberculosis, measles, venereal diseases, and others; (c) That Indian inhabitants of various villages near the route of highway BR-210 (the Northern Circumferential Highway) abandoned their villages and were changed into beggars or prostitutes, without the Government of Brazil's taking the necessary measures to prevent this; and (d) That after the discovery in 1976 of ores of tin and other metals in the region where the Yanomamis live, serious conflicts arose that led to acts of violence between prospectors and miners of those minerals, on one side, and the Indians, on the other. Such conflicts, which occurred especially in the areas of the Serra dos Surucucus, Couto de Magalhäes, and Furo de Santa Rosa, affected the lives, security, health, and cultural integrity of the Yanomamis.” [par. 10] For the IACHR, from these facts “a liability of the Brazilian Government arises for having failed to take timely and effective measures to protect the human rights of the Yanomamis.” [par. 11] However, the IACHR noted that the Government of Brazil had adopted several measures in the previous years aimed at overcoming and alleviating the Yanomami’s problems and protecting their security, health, integrity and territory. Therefore, the IACHR decided to “declare that there is sufficient background information and evidence to conclude that, by reason of the failure of the Government of Brazil to take timely and effective measures in behalf of the Yanomami Indians, a situation has been produced that has resulted in the violation, injury to them, of the following rights recognized in the American Declaration of the Rights and Duties of Man: the right to life, liberty, and personal security (Article I); the right to residence and movement (Article VIII); and the right to the preservation of health and to well-being (Article XI).” [decision 1] It consequently recommended: “(a) That the Government of Brazil continue to take preventive and curative health measures to protect the lives and health of Indians exposed to infectious or contagious diseases; (b) That the Government of Brazil, through the FUNAI and in conformity with its laws, proceed to set and demarcate the boundaries of the Yanomami Park, in the manner that the FUNAI proposed to the inter ministerial working group on September 12, 1984; (c) That the programs of education, medical protection, and social integration of the Yanomamis be carried out in consultation with the indigenous population affected and with the advisory service of competent scientific, medical, and anthropological personnel; and (d) That the Government of Brazil inform the Commission of the measures taken to implement these recommendations.” [decision 3]

 

In its 1997 Report on the situation of human Rights in Brazil, the IACHR referred again to the situation of the Yanomami. It noted in the first place that the Yanomami territory of Brazil, spanning approximately 9.4 million hectares, had already been demarcated and homologated in a final manner, but continued to be incessantly invaded by illegal miners (garimpeiros).

The IACHR pointed out that alter the adoption of its Resolution 12/85, between 1987 and 1990, “in the context of the Calha Norte project's execution, the ancestral Amazonian territory of the Yanomami--which had consisted of 23.5 Million acres--was reduced by 70% and divided into 19 isolated areas. Two thirds of the original territory was opened up to mining exploitation--especially gold. Thousands of ‘garimpeiros’ penetrated their land in search of gold and precious metals. In 1987 their number was estimated as roughly 45,000.” [par. 68] Since 1988, however, some Federal courts adopted a number of protective measures, invalidating the disintegration of their continuous area into separate territorial reserves, and ordering the eviction of illegal miners and loggers. But it was especially after the adoption of the new Constitution in 1988, with its guarantees of indigenous rights, that federal organs began to reduce the presence of intruders in ancestral territories, decreasing their number to a few thousands at the beginning of the nineties decade.

 

In its visit, the IACHR verified that the final demarcation and homologation of the Yanomami area had been completed, that there existed healthcare posts and federal authorities’ vigilance in the territory, and that the National Federal Police carried out efficient actions to protect such territory and defend it from clandestine incursions by garimpeiros. [pars. 68-72] Nonetheless, the IACHR noted that “the vigilance performed by FUNAI and federal agencies in the Yanomami was plagued by a series of ongoing changes. Early in March 1996, the helicopter watch performed by the Federal Police was suspended. As a result, a new shipment of garimpeiros and machinery was brought into the area by plane. It is estimated that some 2,000 garimpeiros have now settled there, and that 24 secret landing strips resulted from that operation.”
[par. 73]

 

The IACHR emphasized with special concern the health situation in the Yanomami area, in particular regarding malaria. It explained that “the introduction of malaria and other diseases, in particular by the garimpeiros, has had adverse effects on the general situation of the Yanomami’s health. The most widely prevalent is malaria which, together with pulmonary disorders, has virtually decimated the Yanomami population and continues to exist on an epidemic scale today. According to official figures, the incidence of malaria among the Yanomami rose by 44% during 1995. That number is consistent with the upturn of malaria in the general population of the State of Roraima, which reached 52% in that year.” Nonetheless, the IACHR also noted that in a Yanomami area where a project promoted by a non-governmental organization was being developed, the incidence of malaria had decreased by 14% in 1995, and the population had increased by 10.3% in the previous four years. [pars. 74-75].

 

The Commission recorded the expressions of some of the Yanomami people’s members about the dangers they felt for their individual and collective survival as a consequence of the entry of garimpeiros, mega-projects and other structural factors of human rights violations: “The Commission (…) heard frequent statements of fear at the introduction of elements from the outside world without due care to protect the

 

fragility of Yanomami culture and proper attention to their health. // In particular, the leaders cite the continuous pressure exercised by the garimpeiros with their sequels of sickness, friction and the poisoning of streams. But they also refer to the access roads to the Yanomami area being built on their lands, which in their experience serves only to introduce disease, intruders (the garimpeiros and other sorts) and the unlawful exploitation of the timber resources or customs which disorganize community life.” [pars. 76-77]

 

On the grounds of its observations, the IACHR concluded that “the Yanomami people have obtained full recognition of their right to ownership of their land. Their integrity as a people and as individuals is under constant attack by both invading prospectors and the environmental pollution they create. State protection against these constant pressures and invasions is irregular and feeble, so that they are constantly in danger and their environment is suffering constant deterioration.” [par. 82(f)] Therefore, it recommended the state of Brazil to “institute federal protection measures with regard to Indian lands threatened by invaders, with particular attention to those of the Yanomami, and in Amazônia in general, including an increase in controlling, prosecuting and imposing severe punishment on the actual perpetrators and architects of such crimes, as well as the state agents who are active or passive accomplices.” [par. 82, Recommendation (e)] Likewise, it recommended the establishment of “procedures to promote compensatory measures in the areas of education and health, with the full participation and control of the Indian peoples concerned, in accordance with their own traditions and leadership.” [par. 82,
Recommendation (a)]

 

 

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[488] I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 118.

[489] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 141.

[490] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, subtitle D.

[491] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007. Series C No. 172, par. 122. I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, pars. 124, 137. I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29th, 2006.  Series C No. 146, pars. 118, 121.

[492] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, subtitle D.

[493] Cf. I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 137, and I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 118.

[494] I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 28, 2007.  Series C No. 172, pars. 120, 121.

[495] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, pars. 120, 121.

[496] I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 135.

[497] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 122. I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, pars. 124, 137. I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, pars. 118, 121.

[498] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 123.

[499] Human Rights Committee, General Comment No. 23 (1994): Article 27 (rights of minorities), CCPR/C/21/rev.1/Add.5 (1994), par. 7; cited in: IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 130, footnote No. 97.

[500] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(f).

[501] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(f).

[502] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 128. Because of their crucial importance, “the close ties of indigenous peoples with their traditional territories and the natural resources therein associated with their culture, as well as the components derived from them, must be safeguarded by Article 21 of the American Convention.” [I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 137. I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, pars. 118, 121. I/A Court H.R., Case of the Xákmok Kásek Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of August 24, 2010.  Series C No. 214, par. 85]  The Inter-American Court considers that indigenous and tribal peoples’ rights over natural resources require attention “regarding the inextricable relationship between both land and the natural resources that lie therein, as well as between the territory (understood as encompassing both land and natural resources) and the economic, social, and cultural survival of indigenous and tribal peoples, and thus, of their members.” [I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 120] Indeed, indigenous and tribal peoples’ right to property, as protected by the Inter-American human rights instruments, encompasses the close bond that they have with the natural resources linked to their culture which are present in their territories, as well as the incorporeal elements that are derived from such resources [IACHR, Follow-up Report - Access to Justice and Social Inclusion:  The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 156. I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 148. I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 137. I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 118].

[503] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(e).

[504] IACHR, Fifth Report on the Situation of Human Rights in Guatemala. Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, Chapter XI, par. 57.

[505] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, pars. 140(n), 140(o).

[506] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 131.

[507] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(a).

[508] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(a).

[509] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 153.

[510] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 194.

[511] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(j).

[512] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, pars. 1066, 1071, 1137 – Recommendations 1 to 4.

[513] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 194(a) (“Until said delimitation, demarcation, and titling of the Saramaka territory has been carried out, Suriname must abstain from acts which might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the territory to which the members of the Saramaka people are entitled, unless the State obtains the free, informed and prior consent of the Saramaka people.”)

[514] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 197 – Recommendation 2.

[515] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 104(ñ).

[516] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 104(ñ).

[517] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[518] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[519] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[520] United Nations Declaration on the Rights of Indigenous Peoples, Article 29; ILO Convention No. 169, Arts. 4.1, 7.3-7.4. 

[521] As of 2010, the Protocol had been ratified or adhered to by Argentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay; and it had been signed by Chile, Dominican Republic, Haiti, and Venezuela. 

[522] IACHR, Report on the Situation of Human Rights in Ecuador.  Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[523] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[524] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[525] IACHR, The Situation of Human Rights in Cuba – Seventh Report. Doc.  OEA/Ser.L/V/II.61, Doc. 29 - rev. 1, 4 October, 1983, pars. 1, 2, 41, 60, 61.

[526] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[527] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, pars. 220, 297 – Recommendation 4.

[528] IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 160.

[529] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 254.

[530] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[531] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[532] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[533] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 255.

[534] IACHR, Second Report on the Situation of Human Rights in Peru. Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, par. 39 – Recommendation 3.

[535] See, in this regard: SHELTON, Dinah. “Environmental rights and Brazil’s obligations in the Inter-American Human Rights System”. The George Washington International Law Review, Volume 40 No. 3, 2008-2009, p. 736.

[536] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997. See also: IACHR, Resolution No. 12/85, Case No. 7.615, Yanomami People (Brazil), March 5, 1985.

[537] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[538] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[539] IACHR, Third Report on the Human Rights Situation in Colombia. Doc. OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, Chapter IX, pars. 33-35.

[540] I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 150.

[541] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 153.  The UN Special Rapporteur has expressed his alarm on the special vulnerability of the forest-dwelling indigenous peoples: “The reduction of the indigenous people’s territorial base is only a small part of a broader phenomenon: the progressive and accelerated loss of control over their natural resources, in which the forest resources situation is particularly dire. In recent years the forests of the indigenous people have been systematically affected by the activities of large forestry corporations and of legal and illegal logging, leading to the progressive destruction of their traditional means of subsistence.  This process not only leads to the deforestation and desertification of large tracts of the planet, but also accelerates the gradual destruction of the indigenous people’s lifestyle and culture. This process affects the living conditions of a multitude of indigenous communities in the equatorial forests of Central Africa, the Amazon basin, the boreal forests of Siberia and America, the Andean range and South-East Asia, as well as the Pacific islands. (…) Some 60 million indigenous people in the world depend almost entirely on the forests for their survival. Hiding behind forest legislation, the authorities tend to sacrifice the rights of local communities to the interests of commercial firms, and resources are often utilized for illegal activities protected by corrupt officials and entrepreneurs. In many countries, eviction of indigenous people from their traditional forests as a result of such activities is one of the essential causes of their impoverishment. (…) The Special Rapporteur recommends that States and multilateral agencies should respect the traditional rights of the forest peoples and include the indigenous people affected in all forest-resource management projects, ensuring that such projects have their full consent and that they share in any profits deriving from them.”  UN – Human Rights Council – Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, UN Doc. A/HRC/4/32, 27 February 2007, pars. 25, 26, 37.

[542] The UN Special Rapporteur has held, in this sense, that “[e]xtractive activities, cash crops and unsustainable consumer patterns have generated climate change, widespread pollution and environmental degradation.  These phenomena have had a particularly serious impact on indigenous people, whose way of life is closely linked to their traditional relationship with their lands and natural resources, and has become a new form of forced eviction of indigenous peoples from their ancestral territories, while increasing the levels of poverty and disease. (…) The indigenous populations have also been affected by the diminution of water reserves throughout the world.  There are numerous populations whose subsistence depends on their close link with rivers and lakes and the regularity of rains, or, when it comes to herdsmen or nomads, to the aquifers in desert or semi-desert areas.  The frequent droughts and famines in some indigenous regions are the result of human activity and could be avoided with appropriate policies. (…) Extraction of natural resources from the subsoil has had a highly discriminatory impact on the indigenous populations (…) who have witnessed the destruction of their traditional territories as a result of highly polluting technologies and disregard of local communities’ right to the environment.” UN – Human Rights Council – Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, UN Doc. A/HRC/4/32, 27 February 2007, pars. 49, 51, 52. See also: UN – Commission on Human Rights - Sub-Commission on Prevention of Discrimination and Protection of Minorities: “Human Rights and the Environment”. Final report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur.  UN Doc. E/CN.4/Sub.2/1994/9, July 6, 1994, par. 77.

[543] IACHR, Third Report on the Situation of Human Rights in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001, Chapter IX, par. 4.

[544] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 253.

[545] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 250.

[546] IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 158.

[547] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(k).

[548] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(o).

[549] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 150.

[550] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 150.

[551] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004,
pars.
145-148.

[552] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007. Series C No. 172, par. 154.

[553] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 148.

[554] IACHR, Third Report on the Situation of Human Rights in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001, Chapter IX, pars. 38, 50 – Recommendation 8.

[555] IACHR, Third Report on the Human Rights Situation in Colombia. Doc. OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, Chapter IX, Recommendation 5.

[556] IACHR, Third Report on the Human Rights Situation in Colombia. Doc. OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, Chapter IX, pars. 29-31 and Recommendation 4.

[557] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 147.

[558] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[559] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997, Chapter IX.

[560] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1141, Recommendation 6. See also: IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 297, Recommendation 6.

[561] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1141, Recommendation 6. See also: IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 297, Recommendation 6.

[562] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 224.

[563] IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 165.

[564] For example, in its judgment on the case of the Saramaka people, the Court “ordered the State to ‘implement adequate safeguards and mechanisms in order to minimize the damaging effects such projects may have upon the social, economic and cultural survival of the Saramaka people’.”I/A Court H.R., Case of the Saramaka People v. Suriname. Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 39.

[565] IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.

[566] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 251.

[567] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1141, Recommendation 6. See also: IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 297, Recommendation 6.

[568] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1141, Recommendation 5.  See also: IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 297, Recommendation 5.

[569] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001. Series C No. 79, par. 104(k).

[570] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 129, footnote No. 127.

[571] On this point, the UN Special Rapporteur has explained: “The establishment of protected areas such as national parks and nature reserves often involves eviction of indigenous people from large tracts of indigenous lands, the collapse of traditional forms of land tenure, and their impoverishment, which has led to many social conflicts. (…) At recent world congresses on parks and conservation (held, respectively, in Durban, South Africa, in 2003 and Bangkok in 2004), attention was drawn to the need for new paradigms for protected areas in order to ensure that violated indigenous rights are restored and are respected in the future.” UN – Human Rights Council – Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, UN Doc. A/HRC/4/32, 27 February 2007, pars. 22-23.  In the case of the Xákmok-Kásek community v. Paraguay, the Inter-American Court of Human Rights analyzed the establishment of a protected natural area over the ancestral territory of the petitioner community, without having taken into account or consulted such community, as a factor that contributed to the violation of its territorial property rights under Article 21 of the American Convention, given that it implied serious restrictions to the development of basic livelihood activities and the impossibility of expropriating such lands to give them to the indigenous. See: I/A Court H.R., Case of the Xákmok Kásek Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of August 24, 2010.  Series C No. 214, pars. 80-82, 115, 157-158, 169-170.

[572] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 143.

[573] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs. Judgment of November 28, 2007.  Series C No. 172, par. 126.

[574] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 49.

[575] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007. Series C No. 172, par. 141.

[576] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 130. At this point, the Inter-American Court cites: ILO Convention No. 169; the World Bank’s Operational Policy OP/BP 4.10; the Human Rights Committee’s General Comment No. 23, paragraph 7; and CERD General Recommendation 23, paragraph 4(d).

[577] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 131.

[578] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 144.

[579] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 155.

[580] IACHR, Third Report on the Human Rights Situation in Colombia. Doc. OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, pars. 29-31 and Recommendation 4.

[581] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 157.

[582] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 157.

[583] Cf. Case of the Indigenous Community Yakye Axa, paras. 144-145 citing (mutatis mutandi) Case of Ricardo Canese v. Paraguay. Merits, Reparations and Costs.  Judgment of August 31, 2004.  Series C No. 111, para. 96; Case of Herrera Ulloa v. Costa Rica.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of July 2, 2004. Series C No. 107, para. 127, and Case of Ivcher Bronstein v. Peru.  Merits, Reparations and Costs.  Judgment of February 6, 2001. Series C No. 74. para. 155. Cf., also, Case of the Indigenous Community Sawhoyamaxa, para. 137.

[584] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 127.

[585] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 139.

[586] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 128.

[587] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 128.

[588] UNHRC, Länsman et al. v. Finland (Fifty-second session, 1994), Communication No. 511/1992, U.N. Doc. CCPR/C/52/D/511/1994, November 8, 1994, para. 9.4.

[589] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 128, footnote No. 123.

[590] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 37 [footnotes ommitted].

[591] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 29.

[592] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 129.

[593] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 38.

[594] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 129.

[595] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1141, Recommendation 6. See also: IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 297, Recommendation 6.

[596] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 138.

[597] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 129.

[598] ILO Convention No. 169, art. 15.2.

[599] World Bank, Operational Policy 4.10, pars 18-19; IADB, Operational Policy OP-765, pp. 5-6.

[600] IACHR, Second Report on the Situation of Human Rights in Peru. Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, par. 26.

[601] IACHR, Second Report on the Situation of Human Rights in Peru. Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, par. 39 – Recommendation 5.

[602] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1141, Recommendation 5. See also: IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 297, Recommendation 5.

[603] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 248.

[604] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 25.

[605] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 26.

[606] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 27.

[607] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 139.

[608] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 139.

[609] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 138.

[610] UNCERD, Consideration of Reports submitted by States Parties under Article 9 of the Convention, Concluding Observations on Ecuador, (…) par. 16.

[611] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 140 [footnotes ommitted].

[612]  I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 129.

[613] Ibidem.

[614] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 40.

[615] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 254.

[616] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 40.

[617] ILO Convention No. 169, Article 7.3.

[618] World Bank, Operational Policy 4.10, par. 9 and Annex A. 

[619] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 154.

[620] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008. Series C No. 185, par. 41.

[621] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 148.

[622] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 41.

[623] I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 129.

[624] ILO Convention No. 169, Article 7.3.

[625] World Bank, Operational Policy 4.10, Annex A: Definitions, par. 2.

[626] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 41.

[627] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 41, footnote No. 23.

[628] Voluntary guidelines for the conduct of cultural, environmental and social impact assessments regarding developments proposed to take place on or which are likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities, COP-7 (Kuala Lumpur, February 9-20, 2004), Decision VII/16, Annex.

[629] Akwé:Kon Voluntary Guidelines, par. 6(d).

[630] Akwé:Kon Voluntary Guidelines, par. 6(f).

[631] Akwé:Kon Voluntary Guidelines, par. 6(a)-(b).

[632] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 41.

[633] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 42.

[634] Cf. I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 16.

[635] ILO Convention No. 169, Article 7.3.

[636] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008.  Series C No. 185, par. 41.

[637] IACHR, Report on the Situation of Human Rights in Brazil, Doc. OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29, 1997, par. 33.

[638] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009.

[639] IACHR, Report on the Situation of Human Rights in Brazil, Doc. OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29, 1997, par. 47.