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]

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.

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]

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.

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.

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