INDIGENOUS AND TRIBAL PEOPLES’ RIGHTS OVER THEIR

ANCESTRAL LANDS AND NATURAL RESOURCES

Norms and Jurisprudence of the Inter-American Human Rights System

X.       RIGHTS TO STATE PROTECTION, OF ACCESS TO JUSTICE AND TO REPARATIONS

A.        Administrative Procedures

335.          Constitutional provisions and legislation to respect indigenous peoples’ rights must be coupled with developing and implementing State policies and actions to enforce them, with indigenous peoples’ participation.  Administrative authorities have the primary responsibility to enforce the laws that protect indigenous peoples’ territorial and resource rights; therefore indigenous and tribal peoples have the right to the existence of effective and prompt administrative mechanisms to protect, guarantee and promote their rights over ancestral territories.  As explained by the IACHR, States are bound to adopt measures to guarantee and give legal certainty to indigenous and tribal peoples’ rights in relation to ownership of their property, inter alia through the establishment of special, swift and effective mechanisms and procedures to solve legal claims over such property.[760]  

336.          These special mechanisms and procedures must be effective; ineffectiveness of the legally established procedures to enforce indigenous peoples’ territorial rights violates articles 1 and 2 of the American Convention on Human Rights.[761] The Inter-American Court has assessed, in light of the requirements of effectiveness and reasonable time established in Article 25 of the American Convention, whether States have administrative procedures in place for granting title to property over lands, and if so, whether they implement such procedures in practice;[762] and it has explained that in order to comply with the conditions set forth in Article 25, it is insufficient for there to be legal provisions that recognize and protect indigenous property – it is necessary for there to exist specific and clearly regulated procedures for matters such as the granting of title over lands occupied by indigenous groups or their demarcation, attending their specific traits.[763]  The Court has also required that administrative procedures for the restitution of indigenous communities’ lands offer a real possibility for the members of indigenous and tribal peoples to recover their traditional lands.[764] In the Court’s terms, by virtue of Article 2 of the American Convention on Human Rights, “it is necessary to establish appropriate procedures in the framework of the domestic legal system to process the land claims of the indigenous peoples involved. The States must establish said procedures to resolve those claims in such a manner that these peoples have a real opportunity to recover their lands.  For this, the general obligation to respect rights set forth in Article 1(1) of said treaty places the States under the obligation to ensure that said procedures are accessible and simple and that the bodies in charge of them have the necessary technical and material conditions to provide a timely response to the requests made in the framework of said procedures.”[765]

337.          Legislators and administrative authorities have a duty to abstain from adopting regulations which are regressive for the effective enjoyment of indigenous and tribal peoples’ territorial rights, as established in the domestic constitutional and legal provisions. Indeed, the IACHR has explained that the implementation of the constitutional and legal provisions that enshrine indigenous and tribal peoples’ territorial rights may be hindered, halted or even reversed through the adoption of regulations aimed at obstructing or undermining the processes of restitution, granting of legal title and demarcation of ancestral lands and territories. States must avoid such regressive measures.[766] 

338.          These administrative procedures must comply with the rules of due process of law. The Inter-American Court has specified that due process must be followed both in the administrative procedures and in any other procedure whose decision may affect a person’s rights.[767]  The effective recourses that States must offer in accordance with Article 25 of the American Convention “must be substantiated according to the rules of due legal process (Article 8 of the Convention).”[768]  The Inter-American Court has indicated that the internal administrative procedures that must comply with due process guarantees include, for example, procedures for the recognition of indigenous leaders, procedures for recognition of juridical personality, and land restitution procedures.[769]

339.          The right to legally established administrative recourses to achieve a final solution of indigenous territorial claims[770] includes the right to obtain a final resolution within a reasonable time, without unjustified delays.[771]  Ineffectiveness of administrative procedures for territorial claims represents, in practice, a failure by the State to guarantee indigenous peoples’ property rights over their ancestral territories.[772]  There is a violation of Articles 8 and 25 of the American Convention, in connection with Articles 1.1 and 2 thereof, whenever the legally established administrative procedures for land reclamation instituted by the members of the indigenous communities disregard the principle of reasonable time and prove to be ineffective.[773]

340.          The IACHR has explained that indefinite delays or tardiness in the identification of the lands available for indigenous and tribal peoples are obstacles to the effective enjoyment of their right to land and territory. States have an obligation to adopt measures to prevent the occurrence of delays, and indigenous and tribal peoples have a right to the adoption of measures to prevent undue delays,[774] free from excessive legal rigors or high costs; for the Commission, procedures which are long, repetitive, delayed, costly or formalist undermine the communities’ rights.[775]  A given delay may be defended by the State if it “proves that the delay is directly related to the complexity of the case or to the conduct of the parties involved.”[776]  The complexity of procedures for the restitution of indigenous and tribal peoples’ territories must be taken into account in evaluating the reasonableness of the delays,[777] but, a protracted delay like the 11 year and eight months that passed in the Yakye Axa case, “constitutes in itself a violation of the right to fair trial.”[778]  There is a violation of Article 25 whenever delays in the administrative procedures are produced, not by the complexity of the case, but by the systematically delayed actions of the State authorities.[779]

341.          States also “must ensure that such proceedings are accessible and simple and that the agencies responsible for them have the technical and material conditions necessary to respond promptly to applications and requests submitted in the course of such proceedings.”[780]  To the same extent, the corresponding administrative procedures must be free of unnecessary formalisms or requirements that undermine their prompt development.  The process of legal demarcation, recognition and granting title to land and use of natural resources must not  be hindered or delayed by bureaucratic difficulties, such as the requirement of certificates or documents issued by other governmental authorities, which delay or paralyze successful recognition of indigenous lands.[781]

342.          The IACHR has explained that conditions such as the requirement of having individual identification documents, or of obtaining recognition of indigenous organizations’ or authorities’ juridical personality, can constitute obstacles to effective access to land and territory, if they are pre-requisites to obtaining legal title to property or representing the peoples before administrative authorities. States must eliminate these obstacles that prevent recognition of individual or collective juridical personality and that hinder the effective enjoyment of the right to territorial property. Indigenous and tribal peoples have the right to recognition of the juridical personality of their members, authorities and organizations, and to be free from difficulties or delays in such recognition that constitute obstacles for the effective access and enjoyment of their rights over lands, territories and natural resources.[782] 

343.          In order to comply with Article 25, “as regards indigenous peoples, it is essential for the States to grant effective protection that takes into account their specificities, their economic and social characteristics, as well as their situation of special vulnerability, their customary law, values, and customs;”[783] the Inter-American Court has applied the rights to due process of law and judicial guarantees in Articles 8 and 25 of the American Convention, to determine whether or not the administrative or judicial procedures that affect indigenous and tribal peoples’ rights have taken into account their specificities, special vulnerability, customary law and other distinctive usages and customs.  The Court has also pointed out that the domestic procedures for land reclamation by indigenous communities must consider their distinctiveness, including the special meaning that land has for them.[784]  Domestic land restitution procedures that do not take into account indigenous and tribal peoples’ distinctive aspects, or that privilege non-indigenous modalities of ownership, do not afford a real possibility of restitution of traditional lands, and therefore are not effective or adequate for the achievement of that purpose.[785]

344.          The IACHR has also emphasized that States must review their legislation, procedures and practices in order to ensure that the determination of indigenous peoples’ and persons’ territorial rights takes place in accordance with the rights enshrined in the Inter-American human rights instruments,[786] which can imply the due training of administrative officials in this matter.

345.          Administrative authorities must act in an informed manner in adopting decisions that affect indigenous territories.  Thus, the actions of administrative authorities aimed at protecting indigenous peoples’ territorial rights must proceed from recognition of their status as historically excluded groups.[787]  In general, in the process of designing policies and programs to recognize and grant legal title to indigenous and tribal ancestral territories, it is necessary for States to have a complete evaluation of the situation of the respective communities, and the legal, institutional – administrative or judicial - and other failures which may have contributed to the situation of dispossession[788] in order for State measures to  address both the complexity of the issue and its actual extent, and to deal with the legal, institutional and other obstacles that may have frustrated past initiatives.[789] Domestic procedures for territorial reclamation must be based as well on sufficient technical studies and technical-scientific grounds; such procedures and decisions must include “a detailed survey individualizing the specific area of the (…) territory that belongs to the members of the [corresponding community] as a result of the attachment and special significance these particular lands have for their members”,[790] indicating its extension and its limits. The absence of these studies and technical-scientific groundings deems the procedures inoperative.[791]

346.          The IACHR has also demanded that the competent State entities carry out a substantial independent review of the historical or other evidence which can allow them to decide on the pertinence of said peoples’ territorial claims over their ancestral lands in a substantive manner, through an effective and fair procedure.[792]  This requirement is disregarded along with the rights to property and due process, when the administrative decisions are not based on an independent review of the available evidence in order to establish whether the territorial claim is founded,[793] but on other grounds such as arbitrary stipulations or negotiations.  

347.          Administrative procedures for land reclamations must be decided through a serious good faith administrative evaluation of the situation; the outcome may not be subordinated exclusively to the will of one of the parties, because such a process does not offer a real possibility of recovering traditional lands, and therefore is not effective for the achievement of this purpose.[794]

348.          States must ensure that the governmental entities in charge of developing administrative procedures for the recognition of indigenous and tribal peoples’ territorial rights act in strict compliance with the applicable laws, without irregularities.[795]  

349.          Moreover, the IACHR has indicated that States are bound to secure the funds and resources necessary to comply with their constitutional and international obligations towards indigenous and tribal peoples’ territorial rights.[796]

350.          The decisions and procedures that comprise the administrative mechanisms must be subject to judicial review. Under Article 25 of the American Convention on Human Rights, indigenous and tribal peoples have the right, in addition to the administrative mechanisms, to an effective judicial recourse aimed at protecting their legitimate territorial claims, and enabling them to seek enforcement of their rights by the Courts.[797]

B.        Access to Justice

            General Considerations

351.          States’ generic duty to protect indigenous property rights requires the effective judicial protection of those rights. Indigenous and tribal peoples have a right to effective judicial protection of their territorial rights, a right encompassed by Articles 8 and 25 of the American Convention and the related provisions of the American Declaration. In this sense, indigenous and tribal peoples’ right to communal property must be judicially guaranteed in the same manner that judicial recourse is granted for the guarantee of the right to private non-indigenous property.  In the IACHR’s opinion, “for indigenous peoples, access to a simple, rapid, and effective legal remedy is especially important in connection with the enjoyment of their human rights, given the conditions of vulnerability under which they normally find themselves for historical reasons and due to their current social circumstances.”[798] 

352.          Article 25 of the American Convention on Human Rights establishes, in broad terms, “the obligation of the States to offer, to all persons under their jurisdiction, effective legal remedy against acts that violate their fundamental rights.”[799]  For the Inter-American Court, “the right of every person to simple and rapid remedy or to any other effective remedy before the competent judges or courts, to protect them against acts which violate their fundamental rights, ‘is one of the basic mainstays, not only of the American Convention, but also of the Rule of Law in a democratic society, in the sense set forth in the Convention’”;[800] therefore, “the inexistence of an effective recourse against the violation of the rights recognized by the Convention constitutes a transgression of the Convention by the State Party in which such a situation occurs. In that respect, it should be emphasized that, for such a recourse to exist, it is not enough that it is established in the Constitution or in the law or that it should be formally admissible, but it must be truly appropriate to establish whether there has been a violation of human rights and to provide everything necessary to remedy it.”[801]  For the Court, “non-existence of an effective remedy against the violations of basic rights recognized by the Convention constitutes in itself an abridgment of this treaty by the State Party in which there is such a situation.”[802] The lack of effective remedies that allow the State structures to ensure the free and full exercise of the human rights of their members, constitutes non-compliance with the duty to adopt internal law provisions that can permit the safeguard of the rights established in the American Convention, pursuant to Article 2.[803] States’ domestic legislation must establish an effective judicial recourse, aimed at protecting indigenous peoples’ legitimate territorial claims; the absence of such recourses or their ineffectiveness constitutes a violation of Articles 8, 25, 2 and 1.1 of the American Convention.[804]

353.          In order for the State to comply with the provisions of Article 25 of the American Convention on Human Rights, “it is not enough for the remedies to exist formally, since they must also be effective.”[805] For the Court, “article 25 of the Convention is closely linked to the general obligation of article 1(1) of the Convention, which assigns protective functions to domestic law in the States Party, and therefore the State has the responsibility to designate an effective remedy and to reflect it in norms, as well as to ensure due application of that remedy by its judicial authorities.”[806] The ineffectiveness of territorial claims procedures represents, in practice, a failure by the State to secure indigenous communities’ property rights over their ancestral territories.[807] States are bound to adopt “appropriate domestic legal steps necessary to ensure an effective procedure to offer a definitive solution to the claim made by the members of the [corresponding] Community.”[808]

354.          For the IACHR, “a state’s obligation to provide effective judicial remedies is not fulfilled simply by the existence of courts or formal procedures, or even by the ability to resort to the courts.  Rather, a state must take affirmative steps to ensure that the remedies provided by the state through its courts are ‘truly effective in establishing whether there has been a violation of human rights and in providing redress.’”[809] States are bound to “adopt the appropriate domestic law measures necessary to ensure an effective procedure providing a final solution to the claim laid by the members of the [respective community]”,[810] and failure to do so implies a violation of Articles 8, 25, 1.1 and 2 of the Convention.

355.          On this point, the IACHR has held that the State duty to grant special protection to indigenous peoples is applied, inter alia, in relation to the right to judicial protection;[811] that States must adopt “effective (…) judicial measures for the purpose of achieving a final solution” to indigenous communities’ territorial claims;[812] that indigenous peoples, as groups, are also the bearers of the right to judicial protection under Articles XVIII of the American Declaration of the Rights and Duties of Man and 25 of the American Convention on Human Rights;[813] that the lack of an effective judicial remedy entails a violation of their substantive right to judicial protection;[814] and that in not allowing indigenous peoples to access the judicial power through specific routes to obtain remedy, states also incur in discrimination.[815]

356.          Article 25 of the American Convention is not fulfilled solely with the possibility of presenting petitions to administrative authorities, not even if such a possibility admits the presentation of petitions to the President of the Republic, given that Article 25 requires states to “provide adequate and effective judicial remedies for alleged violations of communal property rights of members of indigenous and tribal peoples.”[816]  Applying this general rule, in its judgment on the case of the Saramaka people, the Inter-American Court ordered Suriname, as a measure of reparation, to “adopt legislative, administrative and other measures necessary to provide the members of the Saramaka people with adequate and effective recourses against acts that violate their right to the use and enjoyment of property in accordance with their communal land tenure system.”[817]

Matters regarding which indigenous and tribal peoples have the right of access to justice

357.          As a general rule, indigenous and tribal peoples have the right of access to justice whenever there are threats or violations of their territorial rights, in any of their manifestations or components.[818]  Inter-American jurisprudence has identified a series of specific issues with respect to which States must ensure indigenous and tribal peoples’ right of access to justice, including territorial claims;[819] processes for the reclamation of lands;[820] and requests for judicial precautionary injunctions related to indigenous communities’ territorial rights.[821] This enunciation is not, however, comprehensive.

358.          Also, Inter-American jurisprudence has emphasized that one of the matters regarding which the right of access to justice must be enforced, is that of allowing judicial review of the decisions adopted by administrative authorities which have an effect on the corresponding territorial rights.  Thus, to be compatible with international human rights law, it is necessary for those affected by administrative decisions to be granted a judicial recourse for the protection of their property rights, in conditions of equality, in such a way that both the collective and the individual nature of the claimed property rights are considered, and all of those affected are afforded an opportunity to participate in a full and informed manner in the determination of their territorial claims.[822]  The IACHR has underscored that there must exist judicial recourses available for indigenous peoples to contest administrative decisions that affect their territorial rights; such judicial review must be substantial and be adopted through an effective, impartial and fair process, particularly to ensure that the determination of the legal status of lands and territories is made after a process of mutual and informed consent with the affected indigenous people as a whole, in light of the rights to property and a fair trial.[823]

359.          The IACHR has explained that judicial review of the administrative decisions modifying or extinguishing indigenous and tribal peoples’ legal title of property over lands must be based on a judicial evaluation of the pertinent evidence, with due consideration for the substance matter of the claim, through a process of substantive adjudication by the Courts.[824] Access to justice in these cases is a manifestation of the right to equality of treatment of the members of the people concerned.  The general requirements established in international law to carry out expropriation procedures must be complied with – i.e. a valid public purpose, notice to the owners, fair compensation and judicial review.  Treating indigenous peoples  differently with respect to these requirements, without an objective and reasonable justification based on a legitimate aim, constitutes a violation of the right to equality in the determination of their property rights over their ancestral territories.[825]

360.          Indigenous and tribal peoples also have the right to have access to justice in order to seek an effective investigation of the acts of violence of which they are victims, especially those linked to territorial conflicts, and a due sanction of those responsible.[826]

361.          The organs of the Inter-American system have clarified that indigenous and tribal peoples and their members have the right to specific judicial mechanisms which can enable them to contest the consequences that they bear derived from the noxious effects of natural resource exploration and exploitation projects in their territories.  As explained by the IACHR, “[t]he right to access judicial remedies is the fundamental guarantor of rights at the national level. Article 25 of the American Convention (…) means that individuals must have access to judicial recourse to vindicate the rights to life, physical integrity and to live in a safe environment”.[827] The lack of these judicial mechanisms exacerbates their state of defenselessness towards these projects. Said judicial mechanisms must include: criminal actions; precautionary judicial instruments for extreme situations that may affect the right to life; and collective judicial actions that may be exercised by groups affected by the same situation.[828]

362.          In effect, the IACHR has clarified that indigenous and tribal peoples have a right to the existence of accessible, adequate and effective judicial recourses for contesting environmental harms in a collective manner, in addition to criminal actions, which can enable them to obtain an immediate judicial response in case of suffering irreparable harms as groups of persons, as a consequence of natural resource exploration and exploitation projects in their territories. States are in the obligation of establishing and securing access to such judicial recourses.[829]  The IACHR has also indicated that States must guarantee compliance with their environmental and criminal legal provisions in relation to natural resource exploration and exploitation projects in indigenous territories, and impose the corresponding sanctions in case of non-compliance.[830]

363.          Domestic courts play an especially important role at the moment of guaranteeing effective compliance with state obligations in relation to the protection of communal property in the context of development or investment plans. Judicial review must not only be limited to a verification of compliance with the protective measures established in the applicable legislation for indigenous communal property – it must also verify that such compliance is in accordance, in form and in substance, with the Inter-American standards.

364.          Official actions that must be subject to judicial review in this context should include, at least, (a) decisions related to the approval of the plan or project, or those related to prior consultation, including the accommodation of the consultation’s results and, should it be the case, the application of the state duty to obtain indigenous peoples’ consent; (b) decisions regarding the approval of environmental and social impact assessments, or the lack of such assessments, including allegations related to the objective or independent nature, the quality or scope of the assessments, as well as the incorporation of mitigation measures and/or alternatives in relation to the negative impacts identified therein; (c) decisions regarding the establishment of benefit-sharing mechanisms or other forms of compensation, or the lack thereof.

Other characteristics of the access to justice to which indigenous and tribal peoples are entitled

365.          Indigenous and tribal peoples have the right to access justice as peoples, that is, collectively. Judicial recourses which are only available to persons who claim the violation of their individual rights to private property are not adequate or effective to repair alleged violations of the right to communal property of indigenous and tribal peoples; it is necessary for indigenous and tribal peoples, as collective entities, to use such recourses in their condition of collectives, in order to affirm their right, and their members’ right, to communal property.[831]  In its judgment in the Saramaka case, the Inter-American Court ordered Suriname, as a measure of reparation, to “grant the members of the Saramaka people legal recognition of their collective juridical capacity, pertaining to the community to which they belong, with the purpose of ensuring the full exercise and enjoyment of their right to communal property, as well as collective access to justice, in accordance with their communal system, customary laws, and traditions.”[832]

366.          Indigenous and tribal peoples have the right to access the courts; and although alternative conflict resolution mechanisms “may help to reduce procedural delays and deliver justice in remote areas where the judiciary has no presence, they should be regarded as supplementary mechanisms and cannot replace the official justice system, whose absence continues to harm the most vulnerable groups.”[833]  States have the duty to adopt measures to improve the coverage of official justice.[834]  Since indigenous and tribal peoples have the right to have access to State justice, States have the duty to establish and apply judicial systems that accord with their cultural diversity.[835]  States must adopt measures to secure an effective and equitable access to justice for all of the population; this implies the obligation to provide sufficient economic and material resources for the functioning of the judiciary, and providing its operators with inter-cultural training that includes education in indigenous cultures and identity.[836] Likewise the IACHR has emphasized the need for States to support and strengthen the agrarian justice system “with the necessary material and human resources.”[837]

367.          Indigenous and tribal peoples’ right of access to justice, as well as their right to defense, requires that they are able to participate as parties in the processes conducted before the judiciary in relation to their territorial rights.[838]

368.          Indigenous and tribal peoples’ right of access to justice implies that the judges who hear cases related to their territorial rights must adopt their decisions without discrimination, and taking into account their condition of indigenous and tribal peoples in reaching a decision.[839] The judges must be duly trained on the rights that stem from the ancestral use and possession of land by indigenous and tribal peoples, as well as on indigenous customary law, because disregard for them significantly curtails indigenous and tribal peoples’ capacity to claim respect for their rights, and recognition of the ancestral possession of their territories.[840]

369.          Indigenous and tribal peoples’ right of access to justice implies that judges who hear cases related to their territorial rights must adopt their decisions with due motivation.[841]  When indigenous peoples resort to the legally established judicial organs seeking remedies that protect them from acts that violate their rights, “the jurisdictional body must give reasons to support its conclusions, and it must decide on the admissibility or inadmissibility of the legal claim which originates the judicial remedy, after a procedure in which evidence is tendered and there is debate on the allegation.”[842] Judicial recourses are ineffective if they do not recognize the violation of rights, they do not protect claimants in their affected rights, or provide an adequate reparation. In eluding a decision on the petitioners’ rights, they are prevented from enjoying the right to a judicial remedy in the terms of Article 25 of the American Convention on Human Rights.[843]

370.          An essential element of the effectiveness of judicial protection is timeliness: “The right to judicial protection requires that courts adjudicate and decide cases expeditiously, particularly in urgent cases.”[844] Judicial procedures initiated by indigenous and tribal peoples to protect their territorial rights must be conducted and completed within a reasonable term –according to the Inter-American jurisprudence’s criteria on the reasonability of procedural delays-; otherwise they shall become illusory and ineffective.[845] In order to determine the reasonable time within which a judicial process must be completed, four factors must be taken into account: “(a) the complexity of the case; (b) the procedural activity of the interested party; and (c) the conduct of the judicial authorities”,[846] as well as (d) the impact of the passage of time upon the legal situation of the person involved in the process.[847]  Unjustified delays in the adoption of final decisions by the judges to whom indigenous and tribal peoples resort to protect their territorial rights, constitute a violation of the right to judicial protection established in Article XVIII of the American Declaration of the Rights and Duties of Man.[848]  Under said Article, the State violates indigenous and tribal peoples’ right to judicial protection “by rendering domestic judicial proceedings brought by them ineffective through unreasonable delay and thereby failing to provide them with effective access to the courts for protection of their fundamental rights.”[849]  Article 25 of the American Convention on Human Rights is violated to the detriment of indigenous peoples when there are unwarranted delays in the procedures initiated to protect their territorial rights.[850]  Procedures that affect the rights of indigenous and tribal peoples must be conducted without unjustified delays that are disproportionate to their level of complexity.[851] Articles 8 and 25 of the American Convention, in connection with Articles 1.1 and 2 thereof, are violated when legal procedures for land claims initiated by the members of indigenous communities disregard the principle of reasonable term.[852]

371.          Part of indigenous and tribal peoples’ right of access to justice is for the judicial decisions that protect them to be complied with. Article 25 of the American Convention on Human Rights is violated, to the detriment of indigenous peoples, when the judgments and other judicial decisions that protect their rights are not complied with or ignored.[853] The right to judicial protection “pertains to the obligation of the States parties to ensure that the competent authorities comply with judicial decisions, pursuant to article 25(2)(c) of the Convention.”[854]

The Right to Juridical Personality

372.          Indigenous peoples’ collective capacity to act, through their freely chosen representatives, is a pre-condition to their securing effective State compliance with the obligation to guarantee their communal property, through actions such as requests for territorial demarcation and active participation in all of the phases of this procedure; the request for other measures of protection of the right to communal property; and access to the competent administrative and judicial bodies to report violations of said right.  The Inter-American Court has thus derived from the collective nature of indigenous title to property the need for collective capacity to access the judicial or administrative mechanisms to defend that right. In the case of the Saramaka people v. Suriname, the Inter-American Court explained that limiting juridical personality to the individual members of indigenous communities “fails to take into account the manner in which members of indigenous and tribal peoples in general, and the Saramaka in particular, enjoy and exercise a particular right; that is, the right to use and enjoy property collectively in accordance with their ancestral traditions.”[855] 

373.          Recognizing the juridical personality of the people as a whole allows for the development of initiatives taken by peoples’ chosen representatives to defend communal territory,  rather than individual recourse to State authorities.[856]  For the Court, juridical personality of the group would also avoid debates about identifying the true representative of the people for purposes of actions before national authorities and international bodies.[857]  Therefore, the Court held that “the right to have their juridical personality recognized by the State is one of the special measures owed to indigenous and tribal groups in order to ensure that they are able to use and enjoy their territory in accordance with their own traditions. This is a natural consequence of the recognition of the right of members of indigenous and tribal groups to enjoy certain rights in a communal manner.”[858]

374.          The lack of recognition of collective juridical personality “places the [respective] people in a vulnerable situation where individual property rights may trump their rights over communal property, and where the [respective] people may not seek, as a juridical personality, judicial protection against violations of their property rights recognized under Article 21 of the Convention.”[859]  Thus, the State must establish, in consultation with the people and fully respecting their traditions and customs, the judicial and administrative conditions necessary to ensure the recognition of their juridical personality, with the aim of guaranteeing them the use and enjoyment of their territory in accordance with their communal property system, as well as the rights to access to justice and equality before the law.[860] Failure to adopt these measures by the  State entails a violation of Articles 3, 21, 25, 1.1 and 2 of the Convention.

375.          Official mechanisms to recognize indigenous peoples’ and communities’ personality necessarily imply a recognition of their forms of social and political organization.  Although these recognitions can become effective mechanisms to provide legal security, it must be recalled that said recognitions have a merely declaratory, and not constitutive, effect on the existence of indigenous peoples and communities and their traditional forms of authority. In the same way, the process of official recognition of indigenous peoples through the granting and registration of their juridical personality may not be considered as a barrier for them to fully enjoy their right to communal property.

C.        Reparations for Violations of the Right to Territorial Property

Reparations in cases of total or partial loss of ancestral territory

          (i) Restitution of the Ancestral Territory

376.          The type of reparations ordered by the courts in cases of violation of the right to territorial property necessarily varies, depending on the violation detected and its scope in the specific situation. Nonetheless, for claims or requests for the recovery of ancestral territories, and in general in all cases that involve the loss of possession of ancestral territory, the preferred form of reparation is restitution of the claimed territory – in particular because this is the measure of reparation that comes the closest to restitutio in integrum.[861]  This is a manifestation of the rule by which States are in the obligation of respecting and restoring indigenous and tribal peoples’ rights to communal property, and to “the granting of lands, at no cost, of sufficient extent and quality to conserve and develop their ways of life.”[862]  It also reflects the precept by which “once it has been proved that land restitution rights are still current, the State must take the necessary actions to return them to the members of the indigenous people claiming them.”[863]

(ii) Compensation

377.          If there are concrete and justified reasons that make it impossible for States to provide restitution, indigenous and tribal peoples’ must receive a compensation, primarily oriented by the meaning and value that lost land has for the peoples.[864]  This implies the provision of alternative lands in sufficient extension and quality. If the indigenous people so decide, however, a compensatory indemnity may be granted in money or in kind; in addition, there may be additional losses for which reparation is due even after alternative lands have been granted, for which reason there subsists a right to obtain, in an additional manner, the corresponding indemnity.

378.          The Committee on Elimination of Racial Discrimination has especially called upon States parties to the Convention, in its General Recommendation No. 23, to “recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories.  Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.”[865]

379.          In general terms, in cases of violation of indigenous peoples’ territorial rights, the IACHR has recommended that States “make individual and communal reparations of the consequences of the breach of the rights mentioned.  The reparations to be paid by the (…) State must be calculated pursuant to international standards, and must be adequate to compensate pecuniary and non-pecuniary damages caused by the human rights violations (…).  The manner and amount of the reparation must be agreed upon with the members of the [indigenous] Community and its representatives pursuant to the customary law, values, usage and customs of the Indigenous Community”.[866]

380.          In such cases, reparations have both a collective and an individual dimension.  The Inter-American Court has explained that in cases of communities whose rights over ancestral territory are violated, reparations acquire a special collective significance; reparation is awarded individually for the members of the community, but it has as an important component the reparations granted to the members of the communities as a whole.[867]

381.          Part of the reparations must cover the immaterial damages caused to peoples by the violation of their territorial rights. As explained by the Inter-American Court, “non-pecuniary damage may include distress and suffering caused directly to the victims or their relatives, tampering with individual core values, and changes of a non pecuniary nature in the living conditions of the victims or their families”.[868]  In order to assess immaterial damages in these cases, it must be especially taken into consideration that the lack of guarantee of the right to communal property causes suffering to the members of the affected indigenous communities.[869]  For the purpose of compensating immaterial damages, it is also relevant to consider the lack of concretion of the right to communal property, as well as the serious living conditions to which the members of the corresponding community have been exposed as a consequence of the State’s delay in enforcing their territorial rights;[870] such living conditions also cause them suffering.[871]

382.          The special relationship between indigenous and tribal peoples and their traditional territories has been taken into account by the Court at the moment of establishing reparations in cases where specific communities have been forcibly dispossessed of their territories.  Thus in the Moiwana case, the Court considered that the community’s forced displacement had caused emotional, spiritual, cultural and economic damage to its members, considering this fact relevant for the calculation of the reparations for immaterial damages that the State had to afford.[872]  Indeed, the relationship with territory and its meaning is relevant for determining the amount of compensatory indemnities: “the special significance of the land for indigenous peoples in general (…) entails that any denial of the enjoyment or exercise of their territorial rights is detrimental to values that are very representative for the members of said peoples, who are at risk of losing or suffering irreparable damage to their cultural identity and life and to the cultural heritage to be passed on to future generations.”[873]  For indigenous and tribal peoples, “possession of their traditional territory is indelibly recorded in their historical memory, and their relationship with the land is such that severing that tie entails the certain risk of an irreparable ethnic and cultural loss, with the ensuing loss of diversity.”[874]  Similarly, in the case of the Sawhoyamaxa community, in assessing immaterial damages, the Inter-American Court took into account “the non enforcement of the right to hold title to the communal property of the members of the Sawhoyamaxa Community, and the detrimental living conditions imposed upon them as a consequence of the State’s delay in enforcing their rights over the lands.”[875]

Reparations in cases of impacts upon the natural resources of the ancestral territory

383.          Indigenous and tribal peoples have a right to the determination and enforcement of indemnities for the environmental damages caused by natural resource exploration and exploitation projects or development or investment plans in their territories, and for the undermining of their basic subsistence activities;[876] as provided for in ILO Convention No. 169, indigenous and tribal peoples have the right to receive an indemnity for any harm they may have sustained as a result of natural resource utilization activities.[877]

384.          Participation in the benefits is one, albeit not the only form of fair compensation that corresponds to indigenous peoples in relation to the deprivation or limitation of their right to property as a consequence of the execution of development or investment plans or projects or extractive concessions.  For example, in relation to those development or investment plans or projects that do not translate directly into monetary benefits as a result of natural resource exploitation, or that generate diffuse benefits for all (such as, for example, the construction of different types of infrastructure), fair compensation in favor of the affected peoples does not necessarily translate into benefit-sharing mechanisms, but will require a definition of adequate compensatory systems.

385.          Article 40 of the UN Declaration on the Rights of Indigenous Peoples establishes, in general terms, indigenous peoples’ right to “remedies for all infringements of their individual and collective rights”. Under the umbrella of this general provision, the Declaration incorporates different hypotheses in which the right to reparation or compensatory indemnity operates – i.e. damages to the environment, to the productive capacity of lands and other natural resources, and to indigenous peoples’ health.[878]  The broad formulation of these provisions suggests that the duty of reparation is applicable not only to the negative impact of activities carried out by State authorities, but also by commercial companies or other private actors.  In this latter type of cases, states are in the obligation of securing the existence of effective and accessible reparation mechanisms.

386.          Indigenous and tribal peoples also have the right to participate in the determination of the environmental damages caused by said projects, as well as in the determination of the impacts upon their basic subsistence activities.[879]  To that same extent, indigenous and tribal peoples have the right to participate in the process of determination of the indemnity for the damages caused by natural resource exploration and exploitation projects in their territories, in accordance with their own development priorities,[880] and States have the international obligation of guaranteeing their participation in such process of determination of the indemnity.[881]  In this regard, states must ensure that prior consultation 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.”[882]

387.          The forms of compensation of environmental harm required by the Inter-American human Rights protection system are illustrated with the Inter-American organs’ decisions on reparations in cases of violations of indigenous and tribal peoples’ territorial rights.  For these types of violations in general, the IACHR has recommended states to “make individual and communal reparations of the consequences of the breach of the rights mentioned. The reparations to be paid by the (…) State must be calculated pursuant to international standards, and must be adequate to compensate pecuniary and non-pecuniary damages caused by the human rights violations (…).  The manner and amount of the reparation must be agreed upon with the members of the [respective] Community and its representatives pursuant to the customary law, values, usage and customs of the Indigenous Community.”[883]

388.          In its judgment on the case of the Saramaka people v. Suriname, the Inter-American Court considered, in establishing the indemnity for material damages, that  “a considerable quantity of valuable timber was extracted from Saramaka territory without any consultation or compensation (…).  Additionally, the evidence shows that the logging concessions awarded by the State caused significant property damage to the territory traditionally occupied and used by the Saramakas (…).”[884]  Therefore the Court ordered a monetary compensation for the people, on account of the material damages caused directly by these activities.

389.          In the same judgment on the Saramaka people case, in determining the indemnity for immaterial damages, the Inter-American Court held: “the Court described the environmental damage and destruction of lands and resources traditionally used by the Saramaka people, as well as the impact it had on their property, not just as it pertains to its subsistence resources, but also with regards to the spiritual connection the Saramaka people have with their territory (…).  Furthermore, there is evidence that demonstrates the suffering and distress that the members of the Saramaka people have endured as a result of the long and ongoing struggle for the legal recognition of their right to the territory they have traditionally used and occupied for centuries (…), as well as their frustration with a domestic legal system that does not protect them against violations of said right (…), all of which constitutes a denigration of their basic cultural and spiritual values.  The Court considers that the immaterial damage caused to the Saramaka people by these alterations to the very fabric of their society entitles them to a just compensation.”[885]

390.          In accordance with paragraph 194(d) of the Court’s judgment in the Saramaka case, the determination of the beneficiaries of the fair compensation in relation to development and investment projects in Saramaka territory “must be made in consultation with the Saramaka people, and not unilaterally by the State. In any case, (…) ‘these matters can be discussed and addressed during the consultations and process of reaching agreement on the legislative and administrative measures required to give effect to, inter alia, the benefit sharing requirement.’”[886]  The Court explained that “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.”[887]

391.          The calculation of compensatory indemnity for limitations of the right to indigenous communal property must follow criteria of non-discrimination in relation to other private owners.  This is expressly recognized by the World Bank policy on indigenous peoples, by which they must receive, “in a culturally appropriate manner, benefits, compensation, and rights to due process at least equivalent to that to which any landowner with full legal title to the land would be entitled in the case of commercial development on their land.”[888]

392.          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[889].

393.          As the IACHR has highlighted, indigenous and tribal peoples have the right to participate in the determination of the environmental damages caused by projects for the exploration and exploitation of natural resources which are in course of being developed, as well as in the determination of the impacts upon their basic subsistence activities;[890] 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.[891]

394.          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”.[892]