INDIGENOUS AND TRIBAL PEOPLES’ RIGHTS OVER THEIR

ANCESTRAL LANDS AND NATURAL RESOURCES

Norms and Jurisprudence of the Inter-American Human Rights System

IX.       RIGHTS OF PARTICIPATION, CONSULTATION AND CONSENT

A.        The General Obligation

273.          States are under the obligation to consult with indigenous peoples and guarantee their participation in decisions regarding any measure that affects their territory,[640] taking into consideration the special relationship between indigenous and tribal peoples and land and natural resources.[641] This is a concrete manifestation of the general rule according to which the State must guarantee that “indigenous peoples be consulted on any matters that might affect them,”[642] taking into account that “the purpose of such consultations should be to obtain their free and informed consent,”[643] as provided in ILO Convention No. 169[644] and in the UN Declaration on the Rights of Indigenous Peoples.[645]  Consultation and consent are not limited to matters affecting indigenous property rights, but are also applicable to other state administrative or legislative activity that has an impact on the rights or interests of indigenous peoples.[646]

274.          The right to consultation, and the corresponding state duty, are linked to several human rights,[647] and in particular they connect to the right of participation established in Article 23 of the American Convention, as interpreted by the Inter-American Court in the case of YATAMA v. Nicaragua.[648] Article 23 recognizes the right of every citizen “to take part in the conduct of public affairs, directly or through freely chosen representatives.” In the context of indigenous peoples, the right to political participation includes the right to “participate (…) in decision-making on matters and policies that affect or could affect their rights (…) from within their own institutions and according to their values, practices, customs and forms of organization”.[649]

275.          In addition to the Article 23 right to participation, the right to be consulted is fundamental to indigenous and tribal peoples’ communal property right over the lands they have traditionally used and occupied.[650] For the IACHR, “one of the central elements to the protection of indigenous property rights is the requirement that states undertake effective and fully informed consultations with indigenous communities regarding acts or decisions that may affect their traditional territories.”[651]

276.          Indigenous peoples’ right to be consulted about decisions that may affect them is directly related to the right to cultural identity, insofar as culture may be affected by such decisions.[652] The State must respect, protect and promote indigenous and tribal peoples’ traditions and customs, because they are an intrinsic component of the cultural identity of the persons who form part of said peoples.[653] The State duty to develop consultation procedures in relation to decisions that affect their territory, is thus directly linked to the State obligation to adopt special measures to protect the right to cultural identity, based on a way of life intrinsically linked to territory.[654]

277.          Any administrative decision which can legally affect indigenous and tribal peoples’ rights or interests over their territories must be based on a process of full participation: “Articles XVIII and XXIII of the American Declaration specially oblige a member state to ensure that any determination of the extent to which indigenous claimants maintain interests in the lands to which they have traditionally held title and have occupied and used is based upon a process of fully informed and mutual consent on the part of the indigenous community as a whole.  This requires at a minimum that all of the members of the community are fully and accurately informed of the nature and consequences of the process and provided with an effective opportunity to participate individually or as collectives.”[655]

278.          There are multiple decisions that relate to ancestral territories and thus require that the State consult with the affected indigenous or tribal peoples; given the multiplicity of matters that can directly affect ancestral territories, there will be an equal diversity of practical application modalities.

279.          In the Saramaka case, the Court provided examples of the range of State measures that require prior consultation, when it ordered the State of Suriname to consult with the Saramaka people “regarding at least the following six issues:”

1.       the process of delimiting, demarcating and granting collective title over the territory of the Saramaka people;

2.       the process of granting the members of the Saramaka people legal recognition of their collective juridical capacity, pertaining to the community to which they belong;

3.       the process of adopting legislative, administrative, and other measures as may be required to recognize, protect, guarantee, and give legal effect to the right of the members of the Saramaka people to the territory they have traditionally used and occupied;

4.       the process of adopting legislative, administrative and other measures necessary to recognize and ensure the right of the Saramaka people to be effectively consulted, in accordance with their traditions and customs;

5.       regarding the prior environmental and social impact assessments, and

6.       regarding any proposed restrictions of the Saramaka people’s property rights, particularly regarding proposed development or investment plans in or affecting Saramaka territory.[656]

280.          In other cases, the IACHR has clarified that measures concerning access to and effective enjoyment of ancestral territory are subject to prior, effective and informed consultation,[657] as is the establishment of the frontiers of indigenous territory through the processes of effective delimitation and demarcation.[658]  The adoption in domestic law of legislative, administrative, and any other measures necessary to delimit, demarcate and title or otherwise clarify and protect the territory in which indigenous people have a communal property right must also be done by fully informed consultations, in accordance with their customary land use practices, and without detriment to other indigenous communities.[659]  The Inter-American Court has demanded prior consultation and the achievement of a consensus with indigenous or tribal peoples in cases of “selection and delivery of alternative lands, payment of fair compensation, or both,” which “are not subject to purely discretionary criteria of the State, but rather, pursuant to a comprehensive interpretation of ILO Convention No. 169 and of the American Convention, there must be a consensus with the peoples involved, in accordance with their own mechanism of consultation, values, customs and customary law.”[660]

281.          Prior consultation and consent are required for the adoption of any decision that can affect, modify, reduce or extinguish indigenous property rights; in the IACHR’s opinion, “Articles XVIII and XXIII of the American Declaration specially oblige a member state to ensure that any determination of the extent to which indigenous claimants maintain interests in the lands to which they have traditionally held title and have occupied and used is based upon a process of fully informed consent on the part of the indigenous community as a whole.”[661] For the IACHR, the general international legal principles applicable in the context of indigenous peoples’ human rights include the right to have their legal title to the property and use of territories and resources “changed only by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property.”[662] By virtue of Articles II (right to equality), XVIII (right to due process and a fair trial) and XXIII (right to property) of the American Declaration of the Rights and Duties of Man, States must take special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources and their right not to be deprived of this interest except with fully informed consent, under conditions of equality, and with fair compensation.[663]

282.          Informed consultations and consent also figure in the jurisprudence of UN treaty bodies.  The Human Rights Committee has recognized that the enjoyment of indigenous peoples’ cultural rights, including those associated to the use of the land and natural resources, “may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.”[664]  The Committee on the Elimination of Racial Discrimination has called upon States to return the lands and territories which have traditionally been owned, used or occupied by indigenous and tribal peoples whenever they have been deprived of them without their free and informed consent.[665]

283.          The duty of consultation, consent and participation has special force, regulated in detail by international law, in the realization of development or investment plans or projects or the implementation of extractive concessions in indigenous or tribal territories, whenever such plans, projects or concessions can affect the natural resources found therein. Indigenous peoples’ participation through their own institutions and distinctive forms of organization is required before the approval of investment or development plans or projects over natural resources. The importance of this topic, and its central role in the current indigenous panorama of the Americas, is detailed the following section of the present study.

284.          According to ILO Convention No. 169, Article 6, States must consult indigenous peoples “through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly.”[666] The Convention also clarifies that such consultations must be carried out “in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.”[667]  Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples regulates the duty of consultation is as follows: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” 

285.          Consultation is not as a single act, but a process of dialogue and negotiation that implies both parties’ good faith and the objective of achieving a mutual agreement.  Consultation procedures, as a form of guaranteeing indigenous and tribal peoples’ right to participate in matters which can affect them, “must be designed to secure the free and informed consent of these peoples, and must not be limited to notification or quantification of damages.”[668] The consultation procedure may not be limited to compliance with a series of formal requirements.  Even in instances in which indigenous peoples’ consent is not a necessary requirement, States have the duty to give due regard to the results of the consultation or provide objective and reasonable motives for not having taken them into consideration.

286.          The right to participation in the decision-making processes that may affect ancestral territories belongs to the individual members of such peoples, and to the peoples as a whole. The IACHR has emphasized that “the collective interest of indigenous peoples in their ancestral lands is not to be asserted to the exclusion of the participation of individual members in the process. To the contrary, the Commission has found that any determination of the extent to which indigenous peoples may maintain interests in the lands to which they have traditionally held title and have occupied and used must be based upon a process of fully informed and mutual consent on the part of the indigenous community as a whole.”[669]  Procedures to obtain the prior and informed consent of the community as a whole require “at a minimum, that all of the members of the community are fully and accurately informed of the nature and consequences of the process and provided with an effective opportunity to participate individually or as collectives.”[670]  The requirement of full participation by indigenous and tribal peoples in the determination, by administrative authorities, of their territorial property rights or interests, is disregarded whenever there are members of such peoples who have not been afforded the opportunity of playing a full and effective role in the selection, authorization or mandate of those who act on behalf of the people before the authorities;[671] whenever the corresponding claims are promoted by a given band, clan or segment of the corresponding people, without an apparent mandate by the other bands, clans or segments thereof;[672] or whenever appropriate consultations among the members of the entire people are not carried out at the moment of adopting substantial decisions on said rights or interests, in particular when those decisions entail the extinguishment of rights over ancestral territories.[673]

287.          Regardless of the above, the representation of these peoples during the consultation processes must be the one established by the affected peoples themselves in accordance with their tradition, having taken into account the will of the whole people as channeled through the corresponding customary mechanisms. In relation to the State duty to develop consultation processes with the Saramaka people, the Inter-American Court held that “the Saramaka must determine, in accordance with their customs and traditions, which tribe members are to be involved in such consultations”,[674] and which ones shall represent them before the State for these purposes: “by declaring that the consultation must take place “in conformity with their customs and tradition”, the Court recognized that it is the Saramaka people, not the State, who must decide which person or group of persons will represent the Saramaka people in each consultation process ordered by the Tribunal.”[675]  The Court concluded that “accordingly, the Saramaka people must inform the State which person or group of persons will represent them in each of the aforementioned consultation processes.  The State must then consult with those Saramaka representatives to comply with the Court’s orders. Once such consultation has taken place, the Saramaka people will inform the State of the decisions taken, as well as their basis.”[676]

288.          In consulting with regard to the right to communal property, States must not cause detriment to other indigenous communities.[677]  The prolonged absence of effective titles to indigenous property has led, in several countries, to a high level of legal uncertainty around indigenous communities’ rights over their traditional lands and territories, which has sometimes translated into property conflicts between indigenous communities themselves.[678]  In this context, the Inter-American Court has taken into account the legitimate claims that neighboring indigenous communities may have over the same geographical areas and has stipulated that in the demarcation processes, the precise limits of indigenous territories, “may only be determined after due consultation with said neighboring communities,”[679] with their participation and informed consent.[680]

B.        Participation in Respect to Decisions over Natural Resources

289.          Indigenous and tribal peoples have the right to “be involved in the processes of design, implementation, and evaluation of development projects carried out on their lands and ancestral territories”,[681] and the State must “ensure that indigenous peoples be consulted on any matters that might affect them,”[682] taking into account that “the purpose of such consultations should be to obtain their free and informed consent.”[683] When States grant natural resource exploration or exploitation concessions to utilize property and resources encompassed within ancestral territories, they must adopt adequate measures to develop effective consultations, prior to granting the concession, with communities that may potentially be affected by the decision.[684]  The right of every person to participate in governance (Art. 23, American Convention on Human Rights), applied to indigenous peoples in the framework of development projects carried out over the lands, territories and natural resources they use or occupy, translates into prior, free and informed consultation processes, as stated in ILO Convention No. 169.[685] Natural resource exploitation in indigenous territories without the affected indigenous people’s consultation and consent violates their right to property[686] and their right to participate in government.

290.          Consequently there is a State duty to consult and, in specific cases, obtain indigenous peoples’ consent in respect to plans or projects for investment, development or exploitation of natural resources in ancestral territories: States must “promote, consistent with their relevant international obligations, 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.”[687]  Through such prior consultation processes, indigenous and tribal peoples’ participation must be guaranteed “in all decisions on natural resource projects on their lands and territories, from design, through tendering and award, to execution and evaluation.”[688]

291.          Carrying out consultation procedures is a responsibility of the State, and not of other parties, such as the company seeking the concession or investment contract. In many of the countries that form part of the Inter-American system, the State responsibility to conduct prior consultation has been transferred to private companies, generating a de facto privatization of the State’s responsibility.  The resulting negotiation processes with local communities then often fail to take into consideration a human rights framework, because corporate actors are, as a matter of definition, profit-seeking entities that are therefore not impartial.  Consultation with indigenous peoples is a duty of States, which must be complied with by the competent public authorities.[689]  

292.          The minimum contents of the duty to consult, as elaborated by Inter-American jurisprudence and international instruments and practice, define consultation not as a single act, but as a process of dialogue and negotiation that involves both parties’ good faith and the aim of reaching mutual agreement. 

293.          Prior consultation procedures “must involve the groups that may be affected, either because they own land or territory or because such ownership is in the process of determination and settlement.”[690]  In other words, indigenous and tribal peoples who lack formal titles of property over their territories must also be consulted in relation to the granting of extractive concessions or the implementation of development or investment plans or projects in their territories.[691]  Applying this rule, in the Awas Tingni case the Inter-American Court concluded that the State had “violated the right of the members of the Mayagna Awas Tingni Community to the use and enjoyment of their property”, for having “granted concessions to third parties to utilize the property and resources located in an area which could correspond, fully or in part, to the lands which must be delimited, demarcated, and titled.”[692]

294.          The elaboration of principles that provide the basic content of the State duty to consult is a result of the Court’s “evolutionary interpretation” of Article 21 of the American Convention, which takes into account the broader developments in the context of the international human rights regime and in the legal provisions and jurisprudence of the relevant OAS Member States. In fact, in its elaboration of the duty to consult, the Court expressly cites the provisions of ILO Convention No. 169 and of the United Nations Declaration, as well as the jurisprudence of the Human Rights Committee and the reports by the UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people.

295.          ILO Convention No. 169 reflects the State duty to consult in relation to the exploitation of state-reserved natural resources which can affect the interests of indigenous peoples. According to the text of the Convention, “governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands.”[693]  The state duty to consult in relation to the exploration or exploitation of natural resources is guided, in the context of the Convention, by the general rules set forth in Article 6, according to which States must consult indigenous peoples “through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly”.[694]  Likewise, the Convention clarifies that these consultations must be undertaken “in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.”[695]

296.          Article 19 of the United Nations Declaration also regulates generically the duty to consult in the following terms: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

297.          Non-observance of the principles that define the essential content of the duty to consult results in emergence of international State responsibility. In fact, in the Saramaka case, the lack of application of the duty to consult and other connected safeguards was the main argument that led the Inter-American Court to conclude that there had been a violation of said people’s right to property, and determine the corresponding reparations.[696]

Adequate regulatory framework

298.          Compliance with the State duty to consult must be regulated in the domestic legal system through legislative or administrative measures (Articles 1.1 and 2 of the American Convention), in such a way as to fully guarantee the principle of legality and legal certainty to all interested actors. However, the absence of regulation does not exempt the State from said duty.  States must approve legislation “that develops the individual rights of indigenous peoples, that guarantees the mechanisms of participation of indigenous persons in the adoption of political, economic, and social decisions that affect their rights, and that they be accorded greater political participation in the adoption of decisions at the national level;”[697] for these purposes, States must prescribe clear rules and requirements for the process of the consultations, which include for example “information that must be shared with the communities concerned or the extent of community support necessary to permit a license to be issued.”[698]  In most instances, the right to be consulted is violated because of the absence or limitations of the legislative and administrative mechanisms that regulate the duty to consult. ILO control organs have elaborated on the duty to consult in relation to the provisions of Convention No. 169, which stipulates States’ duty to develop, “with the participation of the peoples concerned, co-ordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity”,[699] inter alia through “the proposing of legislative and other measures to the competent authorities and supervision of the application of the measures taken, in co-operation with the peoples concerned”.[700]

299.          The absence of clear legal guidelines for the consultation procedure implies, in practice, a serious obstacle for compliance with the State duty to consult.  In the absence of a legal framework on this obligation, some OAS Member States have resorted to the application of general environmental law, which frequently incorporates requirements of information and public hearings to allow for local participation in relation to investment and development projects, generally during the phase of elaboration of social and environmental impact studies.  Nonetheless, in light of the Inter-American human rights standards, these types of mechanisms are usually insufficient to accommodate the requirements of consultation with indigenous peoples, visualized as a special mechanism to guarantee their rights and interests in accordance with the criteria established by the organs of the system applying international standards.[701]

300.          States also have the general obligation to consult indigenous peoples on the legislative measures which can affect them directly, particularly with regard to the legal regulation of the consultation procedures.[702] Compliance with the duty to consult indigenous and tribal peoples about the definition of the legislative and institutional framework of prior consultation, is one of the special measures required to promote indigenous peoples’ participation in the adoption of the decisions that affect them directly.

301.          It is important to note that, although Inter-American jurisprudence and international practice have elaborated the minimum contents of the State duty to consult, there does not exist a single formula applicable in all countries to comply with this duty.[703] Article 34 of ILO Convention No. 169 explicitly incorporates the principle of flexibility in the application of its provisions: “The nature and scope of the measures to be taken to give effect to this Convention shall be determined in a flexible manner, having regard to the conditions characteristic of each country.”

Prior consultation

302.          Consultation, in order to be prior, must be carried out during the exploratory or planning phase of the corresponding project, plan or measure, well before commencement of its execution activities.  Consultation procedures must be developed “preceding the design and execution of natural resource projects on the ancestral lands and territories of indigenous peoples.”[704]

303.          As the Inter-American Court indicated in its judgment in the Saramaka case, the consultation with indigenous or tribal peoples must take place during the first stages of the development or investment plan or project or the extractive concession: “not only when the need arises to obtain approval from the community, if such is the case. Early notice provides time for internal discussion within communities and for proper feedback to the State.”[705]  The UN Special Rapporteur has pointed out, in the same sense, that “in all cases in which the duty to consult applies, the objective of the consultation should be to obtain the consent or agreement of the indigenous peoples concerned. Hence, consultations should occur early in the stages of the development or planning of the proposed measure, so that indigenous peoples may genuinely participate in and influence the decision-making.”[706]

304.          As for projects and concessions for natural resource exploitation or extraction in indigenous territories, consultation must be carried out from the very moment of evaluation of the grant of a concession: States must secure, beforehand, the effective participation of the affected indigenous or tribal people, through their traditional decision-making methods, both in relation to the process of evaluating the granting of concessions in their territory, and in the adoption of the corresponding decisions.[707]  This is also the meaning of Article 15 of ILO Convention No. 169, which requires States to conduct consultations with indigenous peoples “before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands”.[708] The prior nature of consultation in these instances is also confirmed by the United Nations Declaration, which clarifies that consultation must be conducted “prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”[709]

Culturally adequate consultation

305.          For the Inter-American Court, the State duty to consult indigenous peoples must be carried out in accordance with their customs and traditions, through culturally adequate procedures and taking into account their traditional decision-making methods.[710] In general terms, “all issues related to the consultation process with the [corresponding] people, as well as those concerning the beneficiaries of the ‘just compensation’ that must be shared, must be determined and resolved by the [respective] people in accordance with their traditional customs and norms”;[711] “in ensuring the effective participation of members of the [corresponding] people in development or investment plans within their territory, the State has a duty to actively consult with said community according to their customs and traditions.”[712] States must allow for the effective participation of indigenous and tribal peoples, in accordance with their traditions and customs, in the decision-making processes that relate to extractive concessions or development or investment plans or projects; Articles 21 and 1.1 of the American Convention are violated by not doing so.[713] As the Inter-American Court has explained, “consultations must be [conducted] through culturally appropriate procedures,”[714] peoples must be consulted “in accordance with their own traditions,”[715] and “consultation should take account of the … people’s traditional methods of decision-making.”[716]

306.          The rule of cultural adequacy of consultation requires that indigenous peoples’ representation be defined in accordance with their own traditions; according to the Inter-American Court in the case of the Saramaka people, “by declaring that the consultation must take place ‘in conformity with their customs and tradition’, the Court recognized that it is the Saramaka people, not the State, who must decide which person or group of persons will represent the Saramaka people in each consultation process ordered by the Tribunal.”[717] Consequently, “the Saramaka people must inform the State which person or group of persons will represent them in each of the aforementioned consultation processes. The State must then consult with those Saramaka representatives to comply with the Court’s orders.”[718]  These requirements have a clear normative basis in the main international human rights instruments. Thus, ILO Convention No. 169 requires consultations to be conducted “through appropriate procedures and in particular through their representative institutions.”[719] In similar terms, the United Nations Declaration requires consultations to be conducted “through their own representative institutions”.[720]

307.          Reaffirming the criteria of flexibility and the need to take into account the specific circumstances of both the reasons for the consultation and of the different interested peoples, the ILO control organs have pointed out that given the diversity of indigenous peoples, the Convention does not impose a model representative institution.[721]

Informed consultation

308.          Processes for granting extractive concessions or implementing investment or development plans or projects, require the full provision of precise information on the nature and consequences of the project to the communities prior to and during the consultation.[722]  According to the Inter-American Court’s jurisprudence, consultation must be informed, in the sense that indigenous peoples must be made “aware of possible risks, including environmental and health risks, in order that the proposed development or investment plan is accepted knowingly and voluntarily.”[723] For the Inter-American Court, “this duty requires the State to both accept and disseminate information”[724], and “entails constant communication between the parties”.[725]  The informed nature of consultations is connected to the obligation to carry out social and environmental impact assessments prior to the execution of development or investment plans or extractive concessions which may affect these peoples.[726]

309.          The right to participate in decision-making processes related to investment or development plans or projects or extractive concessions, and the right of access to information, are two basic elements to “support and enhance the ability of individuals to safeguard and vindicate”[727] the rights to life and personal integrity in situations of serious environmental risk, and thus contribute to “the quest to guard against environmental conditions which threaten human health”.[728]  As explained by the IACHR, “access to information is a prerequisite for public participation in decision-making and for individuals to be able to monitor and respond to public and private sector action.  Individuals have a right to seek, receive and impart information and ideas of all kinds pursuant to Article 13 of the American Convention.”[729]  Therefore, the IACHR has advised States: “as the right to participate in decision-making and the right to effective judicial recourse each require adequate access to information, the Commission recommends that the State take measures to improve systems to disseminate information about the issues which affect them, and to enhance the transparency of and opportunities for public input into processes affecting the inhabitants of development sectors.”[730]

310.          The Inter-American jurisprudence on this point is fully consistent with international standards on indigenous peoples’ rights. In this field, ILO Convention No. 169 establishes that consultations on projects for the exploration of exploitation of natural resources must be aimed at “ascertaining whether and to what degree their interests would be prejudiced”.[731]  Indigenous peoples’ right to be fully informed of the content and purpose, as well as of the possible negative and positive impacts of investment or development plans or projects or extractive concessions in their traditional territories, stems from these peoples’ right to determine and elaborate the priorities and strategies for the development or use of their lands or territories and other resources.[732]

311.          In analogy to the safeguards applicable in other judicial or administrative procedures in which indigenous peoples or individuals take part, informed consultation requires States to adopt measures to ensure that members of indigenous peoples or communities “can understand and be understood (…), where necessary through the provision of interpretation or by other effective means”.[733]

312.          Likewise, States may be required to provide these peoples with other means, which can include technical and independent assistance, in order for indigenous peoples to be able to adopt fully informed decisions.[734]

313.          Informed consultation also requires States to ensure that the procedures ”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.”[735]

314.          The complexity and magnitude of investment or development plans or projects or concessions for natural resource extraction may require holding prior information meetings.  These meetings, however, are not to be confused with the type of negotiation and dialogue required by a genuine consultation process.

Consultation in good faith, aimed at reaching an agreement

315.          The process of consultation with indigenous peoples must be carried out in good faith, and in all cases with the aim of achieving an agreement, or receiving indigenous peoples’ informed consent to the development or investment plans or extractive concessions that can affect their property right over lands, territories and natural resources.[736]  In the Inter-American Court’s words, “consultations must be in good faith (…)[737] and with the objective of reaching an agreement”.[738]  As a general rule, States must “ensure, through clear consultation procedures, that their free and informed prior consent is obtained in order to carry out said projects.”[739]  States’ primary obligation is to secure, in accordance with 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.”[740]

316.          The duty to consult with the aim of obtaining consent is reiterated in several specific provisions of the UN Declaration on the Rights of Indigenous Peoples.[741] In relation to investment or development projects over natural resources, Article 32 establishes: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”[742]

317.          The international and regional regulation’s emphasis on good faith in compliance with the State duty to consult indigenous peoples seeks to establish a safeguard against merely formal consultation procedures, an unfortunately frequent practice which has been consistently denounced by indigenous peoples. Consultation procedures are not tantamount to compliance with a series of pro forma requirements.[743]  The IACHR has explained that consultation procedures, as a means to guarantee indigenous and tribal peoples’ right to participate in matters that may affect them, “must be designed to secure the free and informed consent of these peoples, and must not be limited to notification or quantification of damages.”[744]

318.          Consultation in good faith requires the absence of any type of coercion by the State or by agents acting with its authorization or acquiescence.  In too many cases, the consultation of indigenous peoples is carried out in climates of harassment and even violence perpetrated by private security guards hired by the companies that are responsible for the projects, and sometimes by public security forces.  

319.          Good faith is also incompatible with practices such as attempts to disintegrate the social cohesion of the affected communities, whether it is through the corruption of communal leaders or the establishment of parallel leaderships, or through negotiations with individual members of the community that are contrary to international standards.

320.          In this sense, consultation in good faith requires the establishment of a climate of mutual confidence between the parties, based on the principle of reciprocal respect. As pointed out by an ILO Committee, “[r]ecalling that the establishment of effective consultation and participation procedures contributes to preventing and resolving disputes through dialogue … the Committee emphasizes the need to: endeavour to achieve consensus on the procedures to be followed; facilitate access to such procedures through broad information; and create a climate of confidence with indigenous peoples which favours productive dialogue.”[745]  This means, inter alia, that “[i]n order to achieve a climate of confidence and mutual respect for the consultations, the consultation procedure itself should be the product of consensus.  The [UN] Special Rapporteur has observed that, in many instances, consultation procedures are not effective and do not enjoy the confidence of indigenous peoples, because the affected indigenous peoples were not adequately included in the discussions leading to the design and implementation of the consultation procedures.”[746]

321.          As a process that involves two parties, consultation in good faith also has a series of implications for indigenous peoples themselves.  As parties to good faith negotiation and dialogue processes in the framework of the State duty to consult, indigenous peoples have the primary responsibility of actively taking part in such processes. Nonetheless, indigenous peoples’ responsibilities towards consultation may not be interpreted in such a way as to limit their human rights or the exercise of peaceful forms of social protest.

322.          The Inter-American Court has cited the case of Apirana Mahuika and others v. New Zealand,[747] in which the Human Rights Committee “decided that the right to culture of an indigenous population under Article 27 of the ICCPR could be restricted where the community itself participated in the decision to restrict such right.  The Committee found that ‘the acceptability of measures that affect or interfere with the culturally significant economic activities of a minority depends on whether the members of the minority in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy’.”[748] 

The duty of accommodation

323.          A constitutive element of negotiation and dialogue between the authorities and indigenous peoples in the framework of consultation procedures, is that the aim of these procedures must be to obtain an agreement and indigenous peoples’ informed consent.[749]

324.          Insofar as development or investment plans or projects or extractive concessions substantially affect the right to indigenous property and other connected rights, the duty to consult requires, from all involved parties, flexibility to accommodate the different rights and interests at stake.  The States’ duty is to adjust or even cancel the plan or project based on the results of consultation with indigenous peoples, or failing such accommodation, to provide objective and reasonable motives for not doing so.

325.          Failure to pay due regard to the consultation’s results within the final design of the investment or development plans or projects or extractive concessions is contrary to the principle of good faith that governs the duty to consult, which must allow indigenous peoples the capacity to modify the initial plan. From another perspective, decisions related to the approval of such plans, that fail to express the reasons that justify failing to accommodate the results of the consultation procedure, could be considered contrary to the due process guarantees set by the standards of the Inter-American human rights system.

The duty to give reasoned  decisions

326.          The fact that indigenous peoples’ consent is not required as an outcome of every consultation process does not imply that the State duty to consult is limited to compliance with formal procedures.  From a substantive standpoint, States have the duty to take into account the concerns, demands and proposals expressed by the affected peoples or communities, and to give due regard to such concerns, demands and proposals in the final design of the consulted plan or project.

327.          Whenever accommodation is not possible for motives that are objective, reasonable and proportional to a legitimate interest in a democratic society, the administrative decision that approves the investment or development plan must argue, in a reasoned manner, which are those motives.  That decision, and the reasons that justify failure to incorporate the results of the consultation to the final plan, must be formally communicated to the respective indigenous people.[750]

328.          As analyzed in Chapter X, the decisions taken must be subject to review by higher administrative and judicial authorities, through adequate and effective procedures, which evaluate the validity and pertinence of said reasons, as well as the balance between the rights and interests at stake.
 

C.        The Limited Duty to Obtain Prior Informed Consent

329.          Regardless of the fact that every consultation process must pursue the objective of consent, in some specifically defined cases, the Inter-American Court’s jurisprudence and international standards legally require states to obtain indigenous peoples’ free and informed consent prior to the execution of plans or projects which can affect their property rights over lands, territories and natural resources.

330.          The Inter-American Court has underscored “the difference between ‘consultation’ and ‘consent’ in this context,”[751] stating the obligation of obtaining consent in the following terms: “the Court considers that, regarding large-scale development or investment projects that would have a major impact within Saramaka territory, the State has a duty, not only to consult with the Saramakas, but also to obtain their free, prior, and informed consent, according to their customs and traditions.”[752]  In its subsequent interpretive judgment in the Saramaka case, the Court added: “the State has a duty, from the onset of the proposed activity, to actively consult with the Saramaka people in good faith and with the objective of reaching an agreement, which in turn requires the State to both accept and disseminate information in an understandable and publicly accessible format. Furthermore, depending upon the level of impact of the proposed activity, the State may additionally be required to obtain consent from the Saramaka people.  The Tribunal has emphasized that when large-scale development or investment projects could affect the integrity of the Saramaka people’s lands and natural resources, the State has a duty not only to consult with the Saramakas, but also to obtain their free, prior, and informed consent in accordance with their customs and traditions.”[753]

331.          The Court has observed that “other international bodies and organizations have similarly considered that, in certain circumstances, and in addition to other consultation mechanisms, States must obtain the consent of indigenous and tribal peoples to carry out large-scale development or investment projects that have a significant impact on the right of use and enjoyment of their ancestral territories”,[754] citing in this regard a decision of the Committee on Elimination of Racial Discrimination concerning Ecuador.[755]

332.          As the Inter-American Court noted, the United Nations Rapporteur on the situation of human rights and fundamental freedoms of indigenous people has also spoken to this obligation, observing that: “[w]herever [large-scale projects] occur in areas occupied by indigenous peoples it is likely that their communities will undergo profound social and economic changes that are frequently not well understood, much less foreseen, by the authorities in charge of promoting them. […] The principal human rights effects of these projects for indigenous peoples relate to loss of traditional territories and land, eviction, migration and eventual resettlement, depletion of resources necessary for physical and cultural survival, destruction and pollution of the traditional environment, social and community disorganization, long-term negative health and nutritional impacts as well as, in some cases, harassment and violence.’”[756]

333.          The requirement of consent must be interpreted as a heightened safeguard for the rights of indigenous peoples, given its direct connection to the right to life, to cultural identity and other essential human rights, in relation to the execution of development or investment plans that affect the basic content of said rights. The duty to obtain consent responds, therefore, to a logic of proportionality in relation to the right to indigenous property and other connected rights.[757]

334.          The development of international standards on indigenous peoples’ rights, including those set by the Inter-American system, makes it possible to identify a series of circumstances where obtaining indigenous peoples’ consent is mandatory.

1.       The first of these situations, identified by the UN Special Rapporteur, is that of development or investment plans or projects that imply a displacement of indigenous peoples or communities from their traditional lands, that is, their permanent relocation. The requirement of consent in these cases is established in Article 10 of the UN Declaration: “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return”.[758]

2.       Indigenous peoples’ consent is also required, according to the Inter-American Court in the Saramaka judgment, in cases where the execution of development or investment plans or of concessions for the exploitation of natural resources would deprive indigenous peoples of the capacity to use and enjoy their lands and other natural resources necessary for their subsistence.

3.       Another case in which, as pointed out by the Special Rapporteur, indigenous peoples’ consent is required, is that of storage or disposal of hazardous materials in indigenous lands or territories, as established in Article 29 of the UN Declaration.[759]

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