Forest Peoples Programme 1c Fosseway Business Centre, Stratford Road, Moreton-in-Marsh GL56 9NQ, UK tel: +44 (0)1608 652893 fax: +44 (0)1608 652878 info@forestpeoples.org www.forestpeoples.org INTER-AMERICAN COURT OF HUMAN RIGHTS Amicus Curiae Brief in the Case of the Pueblo Indígena Kichwa de Sarayaku v. Ecuador 22 July 2011 Fergus MacKay Senior Counsel Forest Peoples Programme Brantasgracht 7 1019RK Amsterdam The Netherlands Ph. 31-20-419-1746 Fax: 31-20-419-1748 fergus@forestpeoples.org The Forest Peoples Programme is a company limited by guarantee (England & Wales) Reg. No. 3868836, registered address as above. UK-registered Charity No. 1082158. It is also registered as a non-profit Stichting in the Netherlands.
Amicus Curiae Pueblo Indígena Kichwa de Sarayaku v. Ecuador I. Introduction 1. The Forest Peoples Programme ( FPP ), an NGO based in the United Kingdom which supports the rights of indigenous and tribal peoples throughout the world, has the honour of submitting this amicus curiae brief to the illustrious Inter-American Court of Human Rights ( the Court or the Inter-American Court ), pursuant to Article 44 of the Court s Rules of Procedure. The FPP has had the privilege of acting as victims representative before the Court in the cases of Moiwana Village and Saramaka People. 2. While the FPP has not reviewed the briefs submitted by the victims representatives in the case sub judice, we have reviewed the application submitted by the Inter-American Commission on Human Rights ( IACHR ) as well as observed the testimony and arguments presented at the July 2011 public hearing. Cognizant of the fact that the Sarayaku Case is the first time that the Court will apply its jurisprudence developed in the Saramaka People Case, 1 as well as the intrinsic importance of the issues raised in the Sarayaku Case itself, the FPP submits this amicus brief to highlight the Court s jurisprudence in Saramaka and its potential application to the Sarayaku Case. 3. This submission focuses on the Saramaka People judgment as the foundation for resolving the issues raised in Sarayaku; the relationship between ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries ( ILO 169 ) and the American Convention on Human Rights ( the American Convention ); the application of the effective participation and other standards enunciated by the Court; and the relevance of other jurisprudence and instruments to the issues at hand. II. International Labour Organisation Convention No. 169 and its relationship to Sarayaku 4. During the public hearing, frequent reference was made to ILO 169. While this convention, and other instruments, especially the 2007 UN Declaration on the Rights of Indigenous Peoples ( UNDRIP ), are an important point of reference for interpreting the various provisions of the American Convention, the FPP believes for the following reasons that the Court need look no further than its judgment in Saramaka People to resolve the issues raised in Sarayaku. First, Saramaka is the leading case 2 on these issues and this has been acknowledged by the UN Permanent Forum on Indigenous Issues, 3 the UN Special Rapporteur on the Rights of Indigenous Peoples 4 and the UN Expert Mechanism on the 1 The Court made reference to Saramaka People in Four Ngobe Indigenous Communities and their Members (Request for Provisional Measures), Order of the Inter-American Court of Human Rights of 28 May 2010, and Xákmok Kásek Indigenous Community, Judgment of 24 August 2010, Ser C No. 214, but without applying it to the merits of an analogous situation, such as that presented in Sarayaku. 2 See YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW 2007, Oxford University Press, 2008 (case note by Prof. Dinah Shelton); L. Brunner, The Rise of Peoples Rights in the Americas: The Saramaka People Decision of the Inter-American Court of Human Rights, 7 CHINESE JOURNAL OF INTERNATIONAL LAW 2008; J. Harrison, International Law Significant Environmental Cases 2007-08, 10 JOURNAL OF ENVIRONMENTAL LAW 2008; M. Orellana, Saramaka People v. Suriname, 102 AMERICAN JOURNAL OF INTERNATIONAL LAW 841 2008 and; A. Raisz, Indigenous Communities before the Inter-American Court of Human Rights New Century, New Era? 5 MISKOLC JOURNAL OF INTERNATIONAL LAW 35 2008. 3 See Permanent Forum Hails General Assembly Adoption of Indigenous Rights Declaration. Pledges to Make it a Living Document, as Seventh Session Concludes. UN Department of Public Information, 02 May 2008. Available at: http://www.un.org/news/press/docs/2008/hr4953.doc.htm. 4 See Statement by Professor James Anaya. Special Rapporteur on the Situation of the Human Rights and Fundamental Freedoms of Indigenous Peoples. Eighth Session of the UN Permanent Forum on Indigenous Issues, 20 May 2008, p. 4 (stating with regard to Saramaka People that This judgment comprehensively addresses the rights of indigenous peoples to lands and resources and to free, prior, and informed consent ). 2
Rights of Indigenous Peoples, 5 as well as in the jurisprudence of the Human Rights Committee, 6 the IACHR, 7 and the African Commission on Human and Peoples Rights in cases involving indigenous peoples. 8 5. Second, while Saramaka reflects and builds on elements found in ILO 169, the Court relied on the American Convention as its primary focus of analysis (Suriname had not ratified ILO 169) as well as other more contemporary instruments and jurisprudence to progressively articulate crucially important protections for indigenous and tribal peoples. Saramaka thus takes into account the considerable progress in the recognition and protection of the rights of indigenous peoples that has occurred in the more than 20 years since ILO 169 was adopted. Indeed, it may be argued that ILO 169 is in some ways out-dated when viewed in relation to the developments of the past 20 years and this is especially apparent in relation to the UNDRIP which is largely a restatement of existing law rather than merely aspirational and the Court s judgments, beginning with Mayagna and culminating with Saramaka and, most recently, Xákmok Kásek. 6. The International Labour Organisation itself has recognised that ILO 169 is not fully compatible with contemporary understandings of indigenous peoples rights by deciding that it shall be read congruently with the UNDRIP. 9 This is also a recognition that the UNDRIP addresses issues that are not addressed in ILO 169, such as the disposal of hazardous wastes in indigenous peoples territories (an issue that is also relevant in relation to Sarayaku as it concerns, inter alia, the removal and disposal of explosives remaining from seismic testing (see para. 26 below)). This conjunctive reading of ILO 169 and the UNDRIP is consistent with Article 35 of ILO 169, a provision that is analogous to Article 29b of the American Convention. 10 7. In sum, the Court s jurisprudence in Saramaka People and other cases in relation to the American Convention provides a more than sufficient basis for addressing and resolving the issues raised in Sarayaku. While ILO 169 may be useful in further elaborating the standards previously set by the Court, it is important to fully account for the developments in the law of indigenous peoples rights that have occurred since 1989 and not over rely on the standards contained in ILO 169. The Courts jurisprudence contains many of these developments and stands as a shining light in its own right. III. The Right to Effective Participation and Free, Prior and Informed Consent A. The Right to Effective Participation 8. During the public hearing in Sarayaku there was frequent reference to a right of consultation of indigenous peoples and the modalities of this right. Consultation with indigenous peoples is always required. The correct standard to be applied is, instead, the 5 See Human Rights Council, Expert Mechanism on the Rights of Indigenous Peoples, Progress report on the study on indigenous peoples and the right to participate in decision-making. UN Doc. A/HRC/EMRIP/2010/2, 17 May 2010, para. 38 (citing the Court s important jurisprudence in Saramaka People). 6 See inter alia Angela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009. 7 Indigenous and Tribal Peoples Rights over their Ancestral Lands and Natural Resources. Norms and Jurisprudence of the Inter-American Human Rights System. OEA/Ser.L/V/II. Doc. 56/09, 30 December 2009. 8 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (February 2010). Available at: http://www.minorityrights.org/9587/press-releases/landmark-decision-rules-kenyas-removal-ofindigenous-people-from-ancestral-land-illegal.html. 9 See ILO Standards and the UN Declaration on the Rights of Indigenous Peoples. An Information Note for ILO Staff and Partners. Available at: www.ilo.org/wcmsp5/groups/public/---ed.../wcms_100792.pdf. 10 Article 35 of ILO 169 provides that: The application of the provisions of this Convention shall not adversely affect rights and benefits of the peoples concerned pursuant to other Conventions and Recommendations, international instruments, treaties, or national laws, awards, custom or agreements. 3
right of effective participation, as elaborated by the Court in Saramaka People and as affirmed repeatedly by the Human Rights Committee and others, rather than a simple right to consultation. 11 The Court was clear in Saramaka that one of the elements necessary to ensure survival as an indigenous or tribal people 12 is the right to effective participation in decision making in relation to any investment or project 13 that may affect indigenous peoples territories, and that consultation is just one aspect of this right. 14 The Court reiterated this holding in the Xákmok Kásek case. 15 Adherence to this right must, inter alia, commence in the earliest stages of the project; be conducted in conformity with indigenous peoples customs and traditions; be undertaken in good faith and with the objective of reaching an agreement; and must ensure that indigenous peoples are aware of possible risks, including environmental and health risks, so that the activity is accepted knowingly and voluntarily. 16 9. The Court further elaborated on the content on the right of effective participation in its interpretation judgment in Saramaka People, particularly with respect to the right of indigenous and tribal peoples to choose their own representatives and the conformity of the process with the customs and traditions of the indigenous or tribal people in question. 17 It is also important to recall the Yatama Case in this respect, where the Court held that state parties to the American Convention must guarantee that indigenous peoples can participate, in conditions of equality, in decision-making on matters that affect or could affect their rights and the development of their communities and that they are able to do so through their own institutions and in accordance with their values, uses, customs and forms of organization. 18 10. The right to effective participation is much more than a mere right to be consulted; instead, it is a spectrum of rights to be involved in decision making which ranges from consultation and active involvement in decision making, both of which must always occur, to the right to consent, which (as discussed below, and as held by the Court) is triggered under certain circumstances. In this respect, the Court explained in Saramaka that the nature and content of the right to effective participation in any given situation is based on the interests at stake in the proposed activity. 19 Additionally, to be effective, and considering that crucial decisions are made in the feasibility and impact assessment phases of projects, participation must include active involvement at all levels of decision making, including feasibility studies 11 For the jurisprudence of the Human Rights Committee, see inter alia, I. Lansman et al. vs. Finland (Communication No. 511/1992), CCPR/C/52/D/511/1992; Jouni Lansman et al. vs. Finland (Communication No. 671/1995), CCPR/C/58/D/671/1995; Apirana Mahuika et al v. New Zealand. (Communication No 547/1993) CCPR/C/70/D/547/1993, 15 November 2000; Mrs. Anni Äärelä and Mr. Jouni Näkkäläjärvi v. Finland. (Communication No 779/1997) CCPR/C/73/D/779/1997, 7 November 2001; and Angela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009. 12 Survival as an indigenous people is understood to mean their ability 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. 13 The Court explains that a development or investment project means any proposed activity that may affect the integrity of the lands and natural resources within the territory of the Saramaka people, particularly any proposal to grant logging or mining concessions. 14 Saramaka People v. Suriname, Judgment of the Inter-American Court of Human Rights, 28 November 2007. Ser C No. 172, at para. 129. 15 Xákmok Kásek Indigenous Community, Judgment of 24 August 2010, Ser C No. 214, at para. 157 (citing Saramaka and stating that the State must ensure the effective participation of the members of the Community, in keeping with their customs and traditions, regarding any plans or decisions that might affect their traditional lands that can bring restrictions of use and enjoyment of said lands in order to prevent those plans or decisions from denying an indigenous people from their subsistence ). 16 Saramaka People, at para. 133. 17 Saramaka People v. Suriname. Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs. Judgment of 12 August 2008. Series C No. 185, at para. 17-9. 18 Yatama v. Nicaragua, Judgment of the Inter-American Court of Human Rights, 23 June 2005. Series C No. 127, para. 225. 19 Saramaka People, at para. 137. 4
and impact assessments, 20 and the modification of plans or projects where necessary based on indigenous peoples input. 11. The IACHR characterises the last point, correctly in the FPP s view, as a duty to accommodate. 21 It explains that the States duty is to adjust or even cancel the plan or project based on the results of consultation with indigenous peoples, or failing such accommodation, to provide objective and reasonable motives for not doing so. 22 It further explains that Failure to pay due regard to the consultation s results within the final design of the investment or development plans or projects or extractive concessions is contrary to the principle of good faith that governs the duty to consult, which must allow indigenous peoples the capacity to modify the initial plan. From another perspective, decisions related to the approval of such plans, that fail to express the reasons that justify failing to accommodate the results of the consultation procedure, could be considered contrary to the due process guarantees set by the standards of the Inter-American human rights system. 23 12. The duty to accommodate is also present in the jurisprudence of the Human Rights Committee pertaining to indigenous peoples 24 and the constitutional jurisprudence of a number of OAS member states. 25 The FPP considers that this duty is a crucial component of the right to effective participation, and without strict adherence to this duty, participation cannot be considered effective. B. The Right to Free, Prior and Informed Consent 13. The Court held in Saramaka People that the right to effective participation includes, under certain circumstances, the right to consent to a project or investment. The right to consent in the case of indigenous and tribal peoples is derived from a variety of legal and quasi-legal instruments as well as upheld in the jurisprudence of various UN human rights treaty bodies, UN mechanisms focused on indigenous peoples, and regional human rights bodies like the African Commission on Human and Peoples Rights. It is also upheld in the binding operational policies of international financial institutions, such as the Inter- American Development Bank and the International Finance Corporation. Considering the rights at stake in many projects affecting indigenous peoples, the FPP considers that it is imperative that this right is correctly interpreted and applied, including in the Sarayaku Case. 14. In Saramaka, the Court held that effective participation with regard to certain activities requires that State parties not only to consult with indigenous peoples, but also to 20 See inter alia IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 157. 21 Indigenous and Tribal Peoples Rights over their Ancestral Lands and Natural Resources. Norms and Jurisprudence of the Inter-American Human Rights System. OEA/Ser.L/V/II. Doc. 56/09, 30 December 2009, at para. 323-25. 22 Id. at para. 324. 23 Id. at para. 325. 24 See Mrs. Anni Äärelä and Mr. Jouni Näkkäläjärvi v. Finland. (Communication No 779/1997) CCPR/C/73/D/779/1997, 7 November 2001, at para. 7.6 (stating that that the authors, and other key stakeholder groups, were consulted in the evolution of the logging plans drawn up by the Forestry Service, and that the plans were partially altered in response to criticisms from those quarters ); and Apirana Mahuika et al v. New Zealand. (Communication No 547/1993) CCPR/C/70/D/547/1993, at para. 9.6 (observing that Maori communities and national Maori organizations were consulted and their proposals did affect the design of the arrangement ). 25 See inter alia, Haida Nation v. British Columbia (Supreme Court of Canada), [2004] 3 S.C.R. 511, (where Chief Justice McLachlin, writing for a unanimous court, held that Canada has a "duty to consult with aboriginal peoples and accommodate their interests"). 5
obtain their free, prior, and informed consent, according to their customs and tradition. 26 The activities in question were specified by the Court as large-scale projects that may have a major or significant impact within indigenous territories. 27 The Court observed that this is consistent with, inter alia, Article 32 of the UNDRIP (although this provision does not contain the requirement that activities be large-scale or make reference to any quantum of impact in relation to the obligation to obtain indigenous peoples consent). The Court further explained that the cumulative impact of smaller existing and proposed projects or investments may also trigger the requirement that consent be obtained. 28 15. In its 2008 interpretation judgment in Saramaka the Court clarified the applicable standard, stating that depending on the level of impact of the proposed activity, the state may additionally be required to obtain consent from the Saramaka people. The tribunal has emphasized that when large-scale development or investment projects could affect the integrity of the Saramaka people s lands and natural resources, the state has a duty not only to consult with the Saramaka's, but also to obtain their free, prior and informed consent in accordance with their customs and traditions. 29 16. In common with most dictionaries, the Cambridge University Dictionary defines the term integrity as the quality of being whole, complete, unimpaired and undivided. Therefore, in accordance with the plain meaning of the term, consent is required in connection with any large-scale project, or the cumulative effects of smaller existing or proposed projects, that could affect the wholeness, viability and sustainability of indigenous territories or that could damage or impair the quality of the same. This should further be read in connection with the Court s ruling that State parties must respect the special relationship indigenous peoples have with their traditional territories so as to guarantee that they may continue living their traditional way of life, and their distinct cultural identity, social structure, economic system, customs, beliefs, and traditions are respected, guaranteed, and protected by the states. 30 17. The Court s jurisprudence has been followed by the Human Rights Committee, which emphasized in 2009 that the admissibility of measures which substantially compromise or interfere with the culturally significant economic activities of a minority or indigenous community depends on whether the members of the community in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy. The Committee considers that participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community. 31 18. It is especially important to observe that the Committee stressed that indigenous peoples consent in this context is fundamental to rendering participation effective, and that this requirement is triggered both in connection with activities that substantially 26 Saramaka People, at para. 134. See also at para. 137 (explaining that consent is required for major development or investment plans that may have a profound impact on the property rights of the members of the Saramaka people to a large part of their territory ). 27 Id. 28 Saramaka People v. Suriname. Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs. Judgment of 12 August 2008. Series C No. 185, at para. 41 (explaining that environmental and social impact assessments need to address the "cumulative impact of existing and proposed projects. This allows for a more accurate assessment on whether the individual or cumulative effects of existing or future activities could jeopardize the survival or indigenous or tribal people"). 29 Id. at para. 17. 30 Saramaka People, at para. 121 and id. at para. 32. 31 Angela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009, at para. 7.6 6
compromise and/or interfere with indigenous peoples culturally significant economic activities. Most recently, in March 2011, the Committee observed with concern that neither the existence of indigenous peoples in Togo nor their right to free, prior and informed consent is recognized (arts. 2 and 27), and recommended that the State party should ensure that indigenous peoples are able to exercise their right to free, prior and informed consent. 32 This followed a similar recommendation made to Colombia in August 2010. 33 The Committee s jurisprudence has thus evolved in line with the Court s jurisprudence and the UNDRIP to recognise that effective participation in decision making requires indigenous peoples informed consent when their territorial and related rights may be affected. 19. The African Commission on Human and Peoples Rights also heavily relied on Saramaka People in its 2010 decision in the case of the Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya. Its decision states that [i]n terms of consultation, the threshold is especially stringent in favour of indigenous peoples, as it also requires that consent be accorded; 34 and, the African Commission is of the view that any development or investment projects that would have a major impact within the Endorois territory, the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions. 35 20. Likewise, the UN Committee on the Elimination of Racial Discrimination ( CERD ) emphasizes indigenous peoples right, effectuated through their own freely identified representatives or institutions, 36 to give their prior informed consent in general 37 and in connection with specific activities, including: mining and oil and gas operations; 38 logging; 39 the establishment of protected areas; 40 dams; 41 agro-industrial plantations; 42 resettlement; 43 32 Concluding observations of the Human Rights Committee, Togo: CCPR/C/TGO/CO/4, 11 March 2011, at para. 21. 33 Concluding observations of the Human Rights Committee, Colombia: CCPR/C/COL/CO/6, 4 August 2010, at para. 25 (stating that the Committee also regrets that no progress has been made on the adoption of legislation for holding prior consultations and guaranteeing the free, prior and informed consent of the members of the relevant community (arts. 2, 26 and 27); and recommending that the State should adopt the pertinent legislation for holding prior consultations with a view to guaranteeing the free, prior and informed consent of community members ). 34 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (February 2010), para. 226 (emphasis in original). Available at http://www.minorityrights.org/9587/press-releases/landmark-decision-rules-kenyas-removal-ofindigenous-people-from-ancestral-land-illegal.html. 35 Id. para. 291. 36 See e.g., Letter to the Permanent Mission of the Philippines, Urgent Action and Early Warning Procedure, 24 August 2007, p. 2. Available at http://www.ohchr.org/english/bodies/cerd/docs/philippines_letter.pdf (expressing concern about alleged manipulation of the right to consent related to a government agency s creation of a body with no status in indigenous structure and not deemed representative by the affected people). 37 See e.g., General Recommendation XXIII on Indigenous Peoples, adopted by the Committee on the Elimination of Racial Discrimination at its 51st session, 18 August 1997, para. 4(d) (explaining that no decisions directly relating to their rights and interests are taken without their informed consent ); and Australia: CERD/C/AUS/CO/14, 14 April 2005, para. 11 (recommending that Australia take decisions directly relating to the rights and interests of indigenous peoples with their informed consent, as stated in its general recommendation XXIII ). 38 See e.g., Guyana: CERD/C/GUY/CO/14, 4 April 2006, para. 19 (recommending that Guyana seek the informed consent of concerned indigenous communities prior to authorizing any mining or similar operations which may threaten the environment in areas inhabited by these communities ); Guatemala: CERD/C/GTM/CO/11, 15 May 2006, para. 19; Suriname: Decision 1(67), CERD/C/DEC/SUR/4, 18 August 2005, para. 3. 39 See e.g., Cambodia: CERD/C/304/Add.54, 31 March 1998, paras 13, 19 (observing that the rights of indigenous peoples have been disregarded in many government decisions, in particular those relating to citizenship, logging concessions and concessions for industrial plantations and recommending that Cambodia ensure that no decisions directly relating to the rights and interests of indigenous peoples are taken without their informed consent ). 40 See e.g., Botswana: UN Doc. A/57/18, 23 August 2002, paras 292-314, (para. 304 concerning the Central Kalahari Game Reserve); and Botswana: CERD/C/BWA/CO/16, 4 April 2006, para. 12. 41 See e.g., India: CERD/C/IND/CO/19, 5 May 2007, para. 19 (stating that India should seek the prior informed 7
compulsory takings; 44 and other decisions affecting the status of land rights. 45 Of direct relevance to the case at hand is CERD s recommendation to Ecuador concerning oil operations affecting indigenous peoples, which states that merely consulting these communities prior to exploiting the resources falls short of meeting the requirements set out in the Committee's general recommendation XXIII on the rights of indigenous peoples. The Committee therefore recommends that the prior informed consent of these communities be sought, and that the equitable sharing of benefits to be derived from such exploitation be ensured. 46 The Court has also highlighted the equitable sharing of benefits from activities that restrict indigenous peoples property rights as part of ensuring their survival as indigenous peoples, and thus as one of the mandatory requirements with which States must comply with when conducting activities affecting indigenous territories (and observed that this is consistent with the jurisprudence of CERD and others). 47 21. Indigenous peoples right to consent is also part of the jurisprudence of the Committee on Economic, Social and Cultural Rights ( CESCR ). Most recently, the CESCR stated with regard to the exercise of the right to take part in cultural life that the strong communal dimension of indigenous peoples cultural life is indispensable to their existence, well-being and full development, and includes the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 48 It continues that State parties must recognise and respect indigenous peoples rights to own, develop, control and use their communal lands, territories and resources and respect the principle of free, prior and informed consent of indigenous peoples in all matters covered by their specific rights. 49 22. The fundamental importance of effective participation by indigenous peoples and their right to free, prior and informed consent has also been recognised and highlighted by various Special Procedures of the UN Human Rights Council. The Special Rapporteur on Indigenous Peoples, for instance, devotes considerable attention to these issues in his reports and communications. Likewise, citing the Human Rights Committee, the Special Rapporteur on the Right to Food explains that no people s land, including in particular indigenous peoples, can have its use changed without prior consultation. 50 He thus recommends that any consent of communities affected by the construction of dams in the Northeast or similar projects on their traditional lands in any decision-making processes related to such projects and provide adequate compensation and alternative land and housing to those communities ). 42 See e.g., Indonesia, CERD/C/IDN/CO/3, 15 August 2007, para. 17 (recommending that Indonesia ensure that meaningful consultations are undertaken with the concerned communities, with a view to obtaining their consent and participation in the Plan ); and Cambodia, supra, paras 13, 19. 43 See e.g., India, supra, para. 20 (stating that the State party should also ensure that tribal communities are not evicted from their lands without seeking their prior informed consent and provision of adequate alternative land and compensation ); Botswana, supra, para. 12 (recommending that the state study all possible alternatives to relocation; and (d) seek the prior free and informed consent of the persons and groups concerned ). See also Laos: CERD/C/LAO/CO/15, 18 April 2005, para. 18. 44 Guyana, supra, para. 17 (recommending that Guyana confine the taking of indigenous property to cases where this is strictly necessary, following consultation with the communities concerned, with a view to securing their informed consent ). 45 Australia, para. 11 (recommending that the State party refrain from adopting measures that withdraw existing guarantees of indigenous rights and that it make every effort to seek the informed consent of indigenous peoples before adopting decisions relating to their rights to land ); United States of America, A/56/18, 14 August 2001, paras 380-407, (para. 400 concerning plans for expanding mining and nuclear waste storage on Western Shoshone ancestral land, placing their land up for auction for private sale, and other actions affecting the rights of indigenous peoples ). 46 Ecuador: 21/03/2003, CERD/C/62/CO/2, at para. 16. 47 Saramaka People, para. 138-40. 48 Committee on Economic, Social and Cultural Rights, General comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), adopted at the Committee s Forty-third session, 2 20 November 2009. UN Doc. E/C.12/GC/21, 21 December 2009, at para. 36-7. 49 Id. 50 See Large-scale land acquisitions and leases: A set of core principles and measures to address the human rights challenge. Mr. Olivier De Schutter, Special Rapporteur on the right to food, 11 June 2009, at p. 12 8
changes in land use can only take place with free, prior and informed consent and emphasises that this is particularly important for indigenous communities, in view of the discrimination and marginalization they have been historically subjected to. 51 23. Last but not least, indigenous peoples right to effectively participate in decision making is upheld in the mandatory and binding policies of international financial institutions, all of which are discussed and approved by the member-states of the respective institutions. The right to consent or to agree to activities is recognised in the policies of the International Finance Corporation, the private sector arm of the World Bank Group that finances corporate activities, the Inter-American Development Bank, the Asian Development Bank and the European Bank for Reconstruction and Development. 52 It is also a prominent feature of the UN Development Group s policy on indigenous peoples, which applies to the activities of UN specialised agencies, programmes and funds. 53 24. While the preceding list could be expanded further, suffice it to say that the Court s jurisprudence on effective participation and the right to free, prior and informed consent is well reflected in the jurisprudence of the vast majority of intergovernmental human rights bodies and mechanisms. It is also incorporated into binding intergovernmental development policy instruments that apply to the overwhelming majority of international development assistance, including in the private sector arena. This right has thus been recognised as crucially important in the broader framework on indigenous peoples and is viewed as inextricably connected to the exercise of a range of other rights. The FPP therefore urges the Court to reaffirm the applicability of this right in the Sarayaku Case and further elaborate on the modalities of its implementation. 25. It is clear in the case of the Sarayaku community that extractive and related operations were large scale and could have and, in fact, have affected the integrity of the Sarayaku community s lands and territory, including their culturally significant economic and other activities. While the right to be consulted is certainly at issue in this case, it should not be divorced from the broader right to effective participation. Moreover, consistent with the Court s jurisprudence and international human rights law more generally, the free, prior and informed consent of the Sarayaku should have been sought and obtained in this case and this should have commenced in the earliest stages of the extractive operation. The Sarayaku s right to effectively participate in decision making, a key component of ensuring their survival as an indigenous people, was not respected and protected by Ecuador. Nor was their integral right to give or withhold their consent to activities that have drastically affected the integrity of their lands and territory and their associated cultural integrity as a distinct cultural and territorial entity. This right also extends to participation in decision making in impact assessment, identifying effective mitigation measures, and determining benefit sharing, and none of these issues appear to have been adequately addressed in the case of the Sarayaku. For this and other reasons, Ecuador has failed to respect the rights of the Sarayaku community pursuant to, inter alia, Articles 21 and 23 of the American Convention, both read in conjunction with Articles 1 and 2 of the same. 26. Finally, it is also important to note that the abandonment of explosive materials left over from seismic testing in Sarayaku territory or attempts to chemically neutralise these (citing Human Rights Committee, Concluding Observations: Sweden, 7 May 2009 (CCPR/C/SWE/CO/6), para. 20). 51 Id. at p. 13-5 (the Special Rapporteur identifies the following as one of the main human rights principles that is applicable in this context: "Indigenous peoples have been granted specific forms of protection of their rights on land under international law. States shall consult and cooperate in good faith with the indigenous peoples concerned in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources ). 52 See EBRD, Environmental and Social Policy (London, 12 May 2008); Inter-American Development Bank, Operational Policy 7-65 on Indigenous Peoples (22 February 2006); Asian Development Bank, Safeguard Policy Statement (Manila, June 2009); and International Finance Corporation, Performance Standard and Guidance Note 7: Indigenous Peoples (12 May 2011). 53 See UN Development Group Guidelines on Indigenous Peoples Issues, May 2008. 9
explosives are subject to a process of effective participation and consent by the affected people. Apart from representing an inherently dangerous situation, this constitutes the disposal and/or storage of hazardous and toxic materials or waste in Sarayaku lands. This subject is addressed in Article 29 of the UNDRIP, which explicitly requires indigenous peoples consent for the storage or disposal of hazardous materials in their lands or territories. That these lands also have sacred and culturally constitutive characteristics for the Sarayaku further raises the importance of full adherence to their rights and implicates rights to religious freedom as well as a range of cultural rights. Degradation of these lands caused by chemical contaminants may fatally damage their sacred and cultural significance in Sarayaku belief systems and therefore amount to a failure to respect their survival as an indigenous people. It is crucially important that both of these issues are fully addressed in relation to the removal or disposal of remaining explosive materials in Sarayaku lands. IV. Impact Assessment 27. In Saramaka, the Court held that the conduct of prior environmental and social impact assessments ( ESIA ) is part of the conditions necessary to ensure survival as an indigenous or tribal people. 54 The Court states that the purpose of the ESIAs is not only to have some objective measure of such possible impact on the land and people, but also... to ensure that members of the Saramaka people are aware of the possible risks, including environmental and health risks, in order that the proposed development or investment plan is accepted knowingly and voluntarily. 55 The Court therefore ties the prior ESIA to the States duty to guarantee the effective participation of the indigenous and tribal peoples in decisions about activities that may affect their territories. 56 Importantly, the Court also explains that ESIAs need to address the cumulative impact of existing and proposed projects. This allows for a more accurate assessment on whether the individual or cumulative effects of existing or future activities could jeopardize the survival or indigenous or tribal people. 57 28. Further, to be consistent with the Court s orders, the prior ESIAs must conform to the relevant international standards and best practices, and must respect the Saramaka people's traditions and culture. 58 The associated footnote states that One of the most comprehensive and used standards for ESIAs in the context of indigenous and tribal peoples is known as the Akwe: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. 59 The Akwe:kon Guidelines were developed by the state parties to the Convention on Biological Diversity, a convention in force for Ecuador, to facilitate the development and implementation of their impact-assessment regimes. 60 The guidelines apply whenever developments are 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. 61 29. The FPP fully agrees with the preceding and highlights the importance of the Akwe:kon Guidelines to the conduct of effective and culturally appropriate ESIAs in indigenous territories. We also fully endorse the view of the IACHR that 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 54 Saramaka People, at para. 129. 55 Id. at para. 40. 56 Id. at para. 41. 57 Id. 58 Id. (footnote omitted). 59 See http://www.cbd.int/doc/publications/akwe-brochure-en.pdf. 60 Id. at p. 5. 61 Id. 10
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. 62 30. The use of the Akwe:kon Guidelines and an emphasis on effective participation by indigenous peoples in ESIAs is critically important because a series of crucial decisions identified in the Court s jurisprudence in Saramaka are dependent on the results of ESIA processes (whether a project is necessary, proportional, may affect survival as an indigenous people, and whether consent is required, for instance). If the ESIAs are flawed flaws that likely could be readily corrected if indigenous peoples are part of and fully involved in the process then these decisions may also be flawed, potentially to indigenous peoples extreme detriment. In this context, it is also important to note that ILO 169 requires that ESIA s shall be 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. 63 31. We encourage the Court to further elaborate on the preceding requirements in Sarayaku, particularly in relation to the applicable international standards and best practice as it relates to the obligations of State parties under the American Convention as well as to indigenous peoples right to effectively participate in ESIAs. This also extends to ensuring the ESIA process fully takes into account and assesses the likely impact on the rights of indigenous peoples by explicitly considering such rights and impacts as part of the process. V. Survival as an Indigenous People and Proportionality 32. In Saramaka, the Court held that in addition to demonstrating that a project or investment is necessary to achieve a compelling public interest and proportionate, a proposed project or investment cannot threaten the survival of indigenous and tribal peoples, which is understood to mean their ability 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. 64 This has been followed by the Human Rights Committee, which held in 2009 that, in the case of indigenous peoples, State parties must respect the principle of proportionality so as not to endanger the very survival of the community and its members. 65 This is also implicit in Article 27 of the International Covenant on Civil and Political Rights, which provides that members of indigenous peoples shall not be denied the right to enjoy their culture in community with other members of the collective. There are thus some projects and investments that are impermissible under international human rights law. 62 Indigenous and Tribal Peoples Rights over their Ancestral Lands and Natural Resources. Norms and Jurisprudence of the Inter-American Human Rights System. OEA/Ser.L/V/II. Doc. 56/09, 30 December 2009, at para. 248. 63 ILO 169, Article 7(3). 64 Saramaka People v. Suriname, Judgment of the Inter-American Court of Human Rights, 28 November 2007. Ser c No. 172, at para. 129-134 and; Saramaka People v. Suriname. Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs. Judgment of 12 August 2008. Series C No. 185, at para. 37. 65 Angela Poma Poma v. Peru, CCPR/C/95/D/1457/2006, 24 April 2009, at para. 7.6. 11
VI. Self-Determination and the Right to Effectively Control Traditional Territory 33. The Court s judgment in Saramaka importantly highlights the right of indigenous and tribal peoples to self-determination, by virtue of which they may freely pursue their economic, social and cultural development, and may freely dispose of their natural wealth and resources, and how this right interacts with and relates to their property and other rights guaranteed under the American Convention. 66 The interconnectedness of these rights has also been emphasized by the UN Expert Mechanism on the Rights of Indigenous Peoples, which explains that participation in decision-making also has a clear relationship with indigenous peoples right to self-determination, including the right to autonomy or selfgovernment, and the State s obligation to consult indigenous peoples in matters that may affect them based on the principle of free, prior and informed consent. 67 34. In Saramaka, the Court observed that Suriname s current legal framework is incompatible with Article 21 of the Convention because it does not guarantee [the Saramaka] the right to effectively control their territory without outside interference. 68 It would follow then that States have an obligation pursuant to Article 21 to guarantee, respect and protect indigenous and tribal peoples right to effectively control their territories without outside interference, including through freely determining how best to use that territory for their economic, social and cultural development. Pursuant to Article 21 of the American Convention, the Court explains that this right may be restricted only under very specific, exceptional circumstances, particularly when indigenous or tribal land rights are involved. 69 The possible subordination of property rights in exceptional circumstances however does not diminish indigenous peoples right to exercise and enjoy effective control and authority over their territory under normal circumstances and nor does it alter the obligations of States to respect, protect and fulfill those rights under normal circumstances. 35. Furthermore, consistent with its conjunctive reading of Article 21 and the right to selfdetermination, the Court explicitly ordered that legislative recognition of the Saramaka people s territorial rights must include recognition of their right to manage, distribute, and effectively control such territory, in accordance with their customary laws and traditional collective land tenure system. 70 Each of these terms has a specific meaning and describes rights and powers vested in indigenous and tribal peoples in relation to their territory. Control, for instance, can be defined as the power to exercise authoritative or dominating influence, in this case over territory or specific traditionally owned resources within that territory. The Court thus affirms that, in order to freely determine, pursue and enjoy their own development, the Saramaka, and logically other indigenous and tribal peoples, have the right, effectuated through their own institutions, 71 to make authoritative decisions about how best to use their territory; that they have a right to effectively control, manage and distribute their natural wealth and resources without outside interference. 72 66 Saramaka People v. Suriname, at para. at 93. 67 Human Rights Council, Expert Mechanism on the Rights of Indigenous Peoples, Progress report on the study on indigenous peoples and the right to participate in decision-making. UN Doc. A/HRC/EMRIP/2010/2, 17 May 2010, at para. 5. 68 Saramaka People, at para. 115. 69 Saramaka People v. Suriname. Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs. Judgment of 12 August 2008. Series C No. 185, at para. 49. 70 Id. at para. 194 and 214(7). See also UNDRIP, Art. 26(2) (providing that Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired ). 71 See UNDRIP, Article 4 (providing that Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions ). The Court has also highlighted the importance of the preservation of indigenous and tribal peoples communal structures and modes of self-governance in Plan de Sánchez Massacre, Reparations. Judgment of 19 November 2004, Series C No 105, para. 85. 72 Saramaka People, at para. 115 (stating that the State s legal framework merely grants the members of the Saramaka people a privilege to use land, which does not guarantee the right to effectively control their territory without outside interference ). 12