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Abstract
The indigenous rights regime fully recognises the special relationship that indigenous peoples have with their ancestral lands. While it is clear that, before implementing development projects on these lands, states must consult the indigenous peoples concerned, doubts remain as to whether they also have the legal obligation to obtain their consent before taking any such action. Determining the actual meaning of the principle of free, prior and informed consent (FPIC) is crucial to answer this question. This article will argue that a flexible approach to FPIC is gaining increasing recognition internationally. This understanding of FPIC has its normative foundations in the UN Declaration on the Rights of Indigenous Peoples and has been further elaborated by the Inter-American Court of Human Rights.
Acknowledgements
The author would like to thank David Collins, Dr Carmen Draghici, Dr Stefania Errico and the anonymous reviewers for their comments and suggestions.
Notes
In accordance with the current trend in international human rights law, the expression ‘indigenous peoples’ is to be understood in an inclusive and flexible manner that goes beyond narrow interpretations related to ideas of historical precedence and colonial subjugation. On this issue, see, among others, B. Kingsbury, ‘“Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy’, American Journal of International Law 92 (1998): 414–57.
The description of indigenous peoples as groups/communities characterised by, among others, a spiritual relationship with their ancestral lands reflects the way in which the concept of indigenous peoples has been construed and understood under international human rights law. This said, alternative descriptions of this concept can be and have been advanced. See, for example, Y.C. Paradies, ‘Beyond Black and White Essentialism, Hybridity and Indigeneity’, Journal of Sociology 42, no. 4 (2006): 355–67.
As one indigenous representative put it: ‘the issue for indigenous peoples is the land; indigenous peoples are one with the land’. Statement by William Means, in Voices of Indigenous Peoples: Native People Address the United Nations, ed. A. Ewen (Santa Fe, NM: Clear Light, 1994), 60.
‘Indigenous Peoples and their Relationship to Land’, final working paper, prepared by the special rapporteur, Mrs Erica-Irene A. Daes, UN Doc. E/CN.4/Sub.2/2001/21, 11 June 2001, para. 12.
‘Study of the Problem of Discrimination against Indigenous Populations, Volume V Conclusions, Proposals and Recommendations’, by José R. Martinez Cobo, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, United Nations, UN Doc. E/CN.4/Sub.2/1986/7/Add.4, paras 196 and 197.
J. Mander and V. Tauli-Corpus, ed., Paradigm Wars: Indigenous Peoples' Resistance to Globalization (San Francisco: Sierra Club Books, 2006), 3.
Daes, ‘Indigenous Peoples and their Relationship to Land’, para. 12.
Mander and Tauli-Corpus, Paradigm Wars: Indigenous Peoples' Resistance to Globalization, 3.
See, e.g., Victoria Tauli-Corpuz, ‘Our Right to Remain Separate and Distinct’, in Mander and Tauli-Corpus, Paradigm Wars: Indigenous Peoples' Resistance to Globalization, 20.
‘The expropriation of indigenous lands and resources for national development is a growing and severe problem. Development projects are frequently undertaken on indigenous lands and territories without indigenous consent or even consultation.’ Daes, ‘Indigenous Peoples and their Relationship to Land’, para. 132.
Ibid., para. 123.
See, among others, P. Thornberry, Indigenous Peoples and Human Rights (Manchester: MUP, 2002); J. Anaya, Indigenous Peoples in International Law (Oxford: OUP, 2004); J. Gilbert, Indigenous Peoples' Land Rights under International Law: From Victims to Actors (Ardsley, NY: Transnational Publishers, 2006); A. Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture, and Land (Cambridge: CUP, 2007); L. Rodriguez-Pinero, Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime (1919–1989) (Oxford: OUP, 2005); F. Lenzerini, ed., Reparations for Indigenous Peoples: International and Comparative Perspectives (Oxford: OUP, 2008); A. Eide, ‘Rights of Indigenous Peoples: Achievement in International Law During the Last Quarter of a Century’, Netherlands Yearbook of International Law 37 (2006): 155–212.
For an overview, see Xanthaki, Indigenous Rights and United Nations Standards, Chapters 4 and 6.
The Forum is an advisory body to the UN Economic and Social Council (Council). It provides expert advice and recommendations on indigenous issues to the Council, as well as to programmes, funds and agencies of the United Nations (through the Council). It also prepares and disseminates information on indigenous issues related to economic and social development, culture, the environment, education, health and human rights, and promotes the integration and coordination of activities related to indigenous issues within the UN system. See http://www.un.org/esa/socdev/unpfii/en/about_us.html.
Report of the International Workshop on Methodologies Regarding Free, Prior and Informed Consent and Indigenous Peoples (New York, 17–19 January 2005), UN Doc. E/C.19/2005/3, para. 46.
The report rather elusively notes that FIPC ‘may include the option of withholding consent’. However, it does not further elaborate on this point. Ibid., para. 47.
It has been correctly observed that discussions over FPIC should not be ‘framed in terms of whether or not indigenous peoples hold a veto power that they could wield to halt development projects’. James Anaya, ‘Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People’ (15 July 2009), UN Doc. A/HRC/12/34, para. 48. This said, the question as to whether indigenous peoples may enjoy such a right must be specifically addressed, for the potential recognition of this right has important implications with respect to the manner in which the broader process of consultation is conducted. In particular, taking part in consultations knowing that one will hardly be able to oppose the outcome of the process is one thing; doing so with the awareness that the final decision might be successfully affected, or even rejected, is quite another. By virtue of a right ‘to say no’, indigenous peoples could exercise a more effective control over the various stages of the consultation process. For a discussion, see L.J. Laplante and S.A. Spears, ‘Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive Sector’, Yale Human Rights & Development Law Journal 11 (2008): 69. See also Report of the Working Group on Indigenous Populations in its 7th Session, UN Doc. E/CN.4/Sub.2/1989/36, para. 62.
This point was highlighted by the representative of New Zealand during the negotiations on the text of the declaration. Report of the Working Group on the Draft Declaration on its 5th session, UN Doc. E/CN.4/2000/84, para. 93.
FPIC relates to several areas, including cultural heritage, traditional knowledge, genetic resources, displacement, and legislative measures in general. However, this article will focus exclusively on the issue of development projects taking place on indigenous lands.
Formally, the International Bank for Reconstruction and Development, established as a result of the Bretton Woods Conference in 1944. The World Bank Group is composed of four additional institutions that work together towards the transfer of resources and promotion of investment for development countries. See, G. Loibl, ‘International Economic Law’, in International Law, ed. M. Evans, 2nd ed. (Oxford: OUP, 2006), 694–8.
G. Pring and S.Y. Noe, ‘The Emerging International Law of Public Participation Affecting Global Mining, Energy, and Resources Development’, in Human Rights in Natural Resources Development, Public Participation in the Sustainable Development of Mining and Energy Resources, ed. D.N. Zillman, A.R. Lucas, and G. Pring (Oxford: OUP, 2002), 11–12.
The Rio Declaration on Environment and Development (14 June 1992), 31 I.L.M. 874 (1992).
Agenda 21 is a comprehensive plan of action to be taken globally, nationally and locally by organisations of the United Nations system, governments, and major groups in every area in which humans impact on the environment. It was adopted at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil, 3–14 June 1992, http://www.un.org/esa/dsd/agenda21/.
1992 Convention on Biological Diversity, 31 I.L.M. 818 (1992).
Ibid., Article 8(j).
For a more detailed discussion of the World Bank's approach to FPIC, see S. Errico, ‘The World Bank and Indigenous Peoples: The Operational Policy on Indigenous Peoples (O.P.4.10.) Between Indigenous Peoples’ Rights to Traditional Lands and to Free, Prior, and Informed Consent, International Journal on Minority and Group Rights 13 (2006): 367–90.
Ibid., 368.
Tribal Peoples in Bank-Financed Projects, Operational Manual Statement 2.34.
Operational Directive 4.20 on Indigenous Peoples, para. 8.
Operational Policy 4.10 on Indigenous Peoples.
Ibid., para. 2.
‘Striking a Better Balance – The World Bank and Extractive Industries: The Final Report of the Extractive Industries Review’, World Bank Group Management Response,http://www.ifc.org/ifcext/eir.nsf/AttachmentsByTitle/FinalMgtResponseExecSum/$FILE/finaleirmanagementresponseexecsum.pdf.
Operational Policy 4.10 on Indigenous Peoples (July 2005), para. 11.
ILO Convention No. 169 of 1989 Concerning Indigenous and Tribal Peoples in Independent Countries, http://www.ilo.org/public/english/indigenous/. For a detailed analysis of ILO's contribution to the construction of the indigenous rights regime, see Rodriguez-Pinero, Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime.
There exists another ILO convention concerning indigenous peoples' rights, namely ILO Convention No. 107 of 1957 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (ILO 107). ILO 107 remains valid for those states which, having previously ratified it, decided not to become parties to ILO 169 in 1989. However, after the establishment of ILO 169, ILO 107 was declared closed for ratification. The deplorable assimilationistic approach of ILO 107 makes the instrument ill suited to accommodate fairly the rights of indigenous peoples. See, for one, Anaya, Indigenous Peoples in International Law, 54–6.
The ILO guide on the convention correctly acknowledges that ILO No. 169 ‘may be used as a tool to stimulate dialogue between governments and indigenous and tribal peoples, and in this way, to improve their situation’. See ‘ILO Convention on Indigenous and Tribal Peoples, 1989 (No. 169): A Manual’ (Geneva: International Labour Office, 2003), Foreword.
In Anaya's words, ILO 169 represents ‘a central feature of international law's contemporary treatment of indigenous peoples’ demands'. Anaya, Indigenous Peoples in International Law, 58.
Article 14.
Article 7.
Article 6(1).
‘The spirit of consultation and participation constitutes the cornerstone of Convention ILO No. 169 on which all its provisions are based.’ Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Confederacion Ecuatoriana de Organizaciones Sindicales Libres (CEOSL), para. 31.
Article 15(2). The same provision adds that indigenous peoples ‘shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities’.
See ILO Governing Body, 282nd Session, November 2001, representation under Article 24 of the ILO Constitution, GB.282/14/2, para. 39. On this point, see also the Contribution of the ILO to the Workshop on Free, Prior and Informed Consent organised by the UN Permanent Forum on Indigenous Issues, New York, 17–19 January 2005, para. 12, where it is stressed that ILO 169 does not require that the consent of indigenous peoples to the proposed measures is necessary, http://www.un.org/esa/socdev/unpfii/en/workshopFPIC.html.
GB.282/14/2, para. 36.
‘[ILO 169] requires that procedures be in place whereby indigenous and tribal peoples have a realistic chance of affecting the outcome.’ Contribution of the ILO, see n. 43.
The same approach is visible with regard to the issue relocation. As a general principle, Article 16 of ILO 169 establishes that indigenous peoples shall not be removed from the lands which they occupy. However, the Article continues, when the relocation of indigenous peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent (emphasis added). At this point, one would legitimately conclude that relocation cannot take place without the consent of indigenous peoples. Instead, the following passage provides that ‘where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned’.
International Convention on the Elimination of All Forms of Racial Discrimination, GA res. 2106 (XX), Annex, 20 UN GAOR Supp. (No. 14) at 47, UN Doc. A/6014 (1966), 660 U.N.T.S. 195.
CERD has called upon states parties ‘to recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources’. It has also demanded that, where indigenous peoples have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, states should take steps to return those lands and territories. CERD General Recommendation N. 23 on Indigenous Peoples (18 August 1997), para. 5http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/73984290dfea022b802565160056fe1c?Opendocument (accessed 9 March 2011). For an overview of the practice of CERD in relation to indigenous rights see Thornberry, Indigenous Peoples and Human Rights.
States parties should ‘ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent’. CERD General Recommendation N. 23, para. 4(d).
CERD/C/GTM/CO/11 (15 May 2006) Guatemala, para. 19.
CERD/C/GUY/CO/14 (4 April 2006) Guyana, para. 14.
CERD/C/COL/CO/14 (28 August 2009) Colombia, para. 20.
For example, CERD demanded that Chile ‘hold effective consultations with indigenous peoples on all projects related to their ancestral lands’ and ‘obtain their consent prior to implementation of projects for the extraction of natural resources, in accordance with international standards’. CERD/C/CHL/CO/15-18 (7 September 2009), para. 22. Similarly, it urged Guatemala to ‘consult the indigenous population groups concerned at each stage of the process’ and ‘to obtain their consent before executing projects involving the extraction of natural resources’. CERD/C/GTM/CO/12-13, (19 May 2010), para. 11. On another occasion, CERD condemned the fact that the ‘right of indigenous peoples to be consulted and to give their informed consent prior to the exploitation of natural resources in their territories is not fully respected’. CERD/C/PER/CO/14-17 (3 September 2009), para. 14.
International Covenant on Economic, Social and Cultural Rights, GA res. 2200A (XXI), 21 UNGAOR Supp. (No. 16), at 49, UN Doc. A/6316 (1966), 993 UNTS, 3.
For an overview of the practice of the CESCR in relation to indigenous rights see Thornberry, Indigenous Peoples and Human Rights.
For example, in 2001 it urged Colombia ‘to consult and seek the consent of the indigenous peoples concerned prior to the implementation of timber, soil or subsoil mining projects and on any public policy affecting them’. E/C.12/1/Add.74, para. 33. Likewise, in 2004, it requested Ecuador ‘to consult and seek the consent of the indigenous people concerned prior to the implementation of natural resources-extracting projects and on public policy affecting them’. E/C.12/1/Add.100, para. 35. In 2006, it asked Mexico to ensure that the indigenous peoples ‘are duly consulted, and their prior informed consent is sought’. E/C.12/MEX/CO/4, para. 28.
General Comment No. 21, Right of Everyone to Take Part in Cultural Life, UN Doc. E/C.12/GC/21 (21 December 2009).
Ibid., para. 55(e).
Ibid., emphasis added. In another passage, the Committee stressed that ‘States parties should respect the principle of free, prior and informed consent of indigenous peoples in all matters covered by their specific rights’. Ibid., para. 37.
E/C.12/LKA/CO/2-4, (2010, Sri Lanka), para. 11.
E/C.12/COL/CO/5, para. 9, where the CESCR recommended Colombia to promote FPIC in accordance with the normative framework of ILO Convention No. 169.
International Covenant on Civil and Political Rights, GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UNTS, 171.
Article 27 protects, among others, the right of persons belonging to ethnic, religious or linguistic minorities to enjoy, in community with the other members of their group, their own culture. The HRC has promoted an extensive reading of ‘culture’, noting that ‘culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples’. See HRC General Comment No. 23, The Rights of Minorities (Art. 27), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/fb7fb12c2fb8bb21c12563ed004df111?Opendocument.
Commenting on Chile's report in 1999, the HRC noted that ‘when planning actions that affect members of indigenous communities, the State party must pay primary attention to the sustainability of the indigenous culture and way of life and to the participation of members of indigenous communities in decisions that affect them’, CCPR/C/79/Add.104, para. 22.
In 2008 the HRC requested Nicaragua to ‘conduct consultations with indigenous peoples before granting licences for the economic exploitation of the lands where they live’. CCPR/C/NIC/CO/3, para. 21(c).
In 2010, the HRC urged Mexico to ‘take necessary steps to ensure the effective consultation of indigenous peoples for decision-making in all areas that have an impact on their rights’. CCPR/C/MEX/CO/5, para. 22.
In 2010, the HRC urged Colombia to ‘adopt the pertinent legislation for holding prior consultations with a view to guaranteeing the free, prior and informed consent of community members’. CCPR/C/COL/CO/6, para. 25.
Communication No. 511/1992, CCPR/C/52/D/511/1992 (8 November 1994).
In a similar vein, in a follow-up of a previous individual communication, the HRC first recommended that Canada ‘consult with the [Lubicon Lake] Band before granting licenses for economic exploitation of the disputed land’. However, by further noting that ‘in no case such exploitation [should] jeopardize the rights recognized under the Covenant’, the HRC was suggesting that, under the above circumstances, mere consultation would not suffice to guarantee the legality of the exploitation. CCPR/C/CAN/CO/5 (20 April 2006), para. 9.
Communication No.1457/2006, CCPR/C/95/D/1457/2006 (24 April 2009), para. 7.4.
Declaration on the Rights of Indigenous Peoples, adopted 13 September 2007, GA Res. 61/295, UN GAOR, 61st Sess., UN Doc. A/RES/61/295 (2007). For an overview of the content of the UNDRIP see S. Errico, ‘The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview’ and ‘The UN Declaration on the Rights of Indigenous Peoples is Adopted: An Overview’, Human Rights Law Review 7 (2007): 741–59.
On the legal value and overall significance of the UNDRIP see M. Barelli, ‘The Role of Soft Law in the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples’, International and Comparative Law Quarterly 58 (2009): 957–83.
Anaya, Indigenous Peoples in International Law, 53.
‘Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.’
‘(1) Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. (2) 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. (3) States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.’
It is important to highlight that the indigenous peoples' right to self-determination should be understood essentially as a right to internal self-determination. On this issue, see, among others, P. Aikio and M. Scheinin, ed., Operationalizing the Right of Indigenous Peoples to Self-Determination (Abo: Abo Akademi University, 2000); and Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture, and Land, chapter 4.
Daes, ‘Indigenous Peoples and their Relationship to Land’, para. 43.
Several governmental representatives noted that in their countries ‘subsoil resources were owned by the State and could not be included within the provisions guaranteeing ownership of land and territories’. Report of the Working Group on Indigenous Populations in its 8th session, UN Doc. E/CN.4/Sub.2/1990/42, para. 115.
UN Economic and Social Council Resolution 1982/34 of 7 May 1982.
As aptly observed by Robert Tickner, the then Australian Minister for Aboriginal Affairs, most states did not actively participate in the sessions of the WGIP because they conveniently ‘reserved their position for UN forums further up the hierarchy, where indigenous voices were not expected to be heard with such strength and determination and where governments had in the past dictated the agenda free of non-governmental…interference’. R. Tickner, Taking a Stand: Land Rights to Reconciliation (Crows Nest, NSW: Allen & Unwin, 2001), 303.
E/CN.4/1994/2.Add.1.
Established in 1995 in accordance with Commission on Human Rights Resolution 1995/32 and Economic and Social Council Resolution 1995/32.
Human Rights Council Resolution 2006/2 of 29 June 2006.
Emphasis added.
For example, the representative of Brazil suggested that governments should simply ‘take account of the free and informed opinion [of indigenous peoples] in the approval of any project affecting their lands and their resources’. Report of the Working Group on the Draft Declaration in its 2nd session, UN Doc. E/CN.4/1997/102, para. 280.
UN Doc. E/CN.4/2005/89/Add.2
In the latter case, indigenous organisations had to apply to the Coordinator of the International Decade of the World's Indigenous People. Although states had to be consulted before accrediting the participation of indigenous organisations, their consent was not required, and ultimately a large number of indigenous organisations attended the relevant sessions.
See, for example, the statements of the representatives of Denmark, Canada, Norway, Chile, Sweden, USA, Colombia and the Russian Federation at the second session of the WGDD. ‘Report of the Working Group on the Draft Declaration on its Second Session’, UN Doc. E/CN.4/1997/102 (10 December 1996), paras 23–34.
Emphasis added.
In this respect, it should be noted that indigenous peoples successfully defended particularly controversial provisions from the attack of states, in primis the one on self-determination. The fact that they could not preserve the original version of Article 32 suggests that states were strongly opposed to a radical interpretation of FPIC.
For example, Canada noted that ‘the establishment of complete veto power over legislative action for a particular group would be fundamentally incompatible with Canada's parliamentary system’. New Zealand noted that indigenous peoples could not enjoy a right that other groups or individuals did not have, that is, the right to veto, because this would create different classes of citizenship. Australia highlighted that it ‘could not accept a right that allowed a particular sub-group of the population to be able to veto legitimate decisions of a democratic and representative Government’, http://www.un.org/News/Press/docs/2007/ga10612.doc.htm.
Statement of the representative of Austria speaking on behalf of the EU, Human Rights Council, Geneva, 27 June 2006, http://old.docip.org/Human%20Rights%20Council/Session1/cddh1_7.pdf.
In this respect, the judicial activity of the Inter-American Court of Human Rights can be regarded as being part of a wider ‘judicial discourse’ on minority and indigenous rights that is contributing to clarifying the contours of various aspects of the international legal protection of minority groups. See G. Pentassuglia, ‘Evolving Protection of Minority Groups: Global Challenges and the Role of International Jurisprudence’, International Community Law Review 11 (2009) 185–218.
See J.M. Pasqualucci, ‘The Evolution of International Indigenous Rights in the Inter-American Human Rights System’, Human Rights Law Review 6 (2008): 281–322.
Article 21 reads as follow: (1) Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society; (2) No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law; (3) Usury and any other form of exploitation of man by man shall be prohibited by law, http://www.cidh.org/Basicos/English/Basic3.American%20Convention.htm.
Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-American Court of Human Rights, Series C 79 (2001).
Comunidad Indigena Yakye Axa v. Paraguay, Inter-American Court of Human Rights, Series C 125 (2005), paras 124 and 137; Sawhoyamaxa Indigenous Community v. Paraguay, Inter-American Court of Human Rights, Series C 146 (2006), paras 118–21; Saramaka People v. Suriname, Inter-American Court of Human Rights, Series C 172 (2007), paras 87–96.
Mayagna (Sumo) Awas Tingni Community v. Nicaragua, para. 149.
Sawhoyamaxa Indigenous Community v. Paraguay, para. 128.
Comunidad Indigena Yakye Axa v. Paraguay, para. 143.
Ibid., para. 144.
Ibid., para. 146.
Ibid., para. 147. However, the court also emphasised that the recognition of the special relationship between indigenous peoples and their lands does not demand that ‘every time there is a conflict between the territorial interests of private individuals or of the State and those of the members of the indigenous communities, the latter must prevail over the former’. Ibid., para. 149.
Sawhoyamaxa Indigenous Community v. Paraguay, para. 131.
Ibid.
Saramaka People v. Suriname, Inter-American Court of Human Rights, Series C 172 (2007). For an overview of the case see M.A. Orellana, ‘Saramaka People v. Suriname’, American Journal of International Law 102 (2008): 841–7.
The IACtHR noted that the indigenous peoples' right ‘to use and enjoy their territory would be meaningless…if said right were not connected to the natural resources that lie on and within the land’. Saramaka People v. Suriname, para. 122.
Ibid., para. 126.
Ibid., para. 127.
Ibid., para. 129.
Emphasis added.
Ibid., para. 158.
Ibid., para. 134.
Ibid., para. 131.
G. Pentassuglia, Minority Groups and Judicial Discourse in International Law: A Comparative Perspective (Leiden: Martinus Nijhoff Publishers, 2009), 113.
Ibid., 116.
Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, A/HRC/12/34 (15 July 2009), para. 47.
Ibid.
The Impact of Large-scale Development Projects on Human Rights and Fundamental Freedoms of Indigenous Peoples and Communities, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc. E/CN.4/2003/90 (21 January 2003), para. 6.
Ibid., para. 2.
Centre for Minority Rights Development (Kenya) v. Kenya, African Commission on Human and Peoples' Rights 276/2003 (4 February 2010), http://www.escr-net.org/usr_doc/Endorois_Decision.pdf.
African [Banjul] Charter on Human and Peoples' Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).
For a detailed analysis of the case, see J. Gilbert, ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples' Rights', International and Comparative Law Quarterly 60 (2011): 245–70.
Centre for Minority Rights Development (Kenya) v. Kenya, para. 209.
Ibid.
Ibid., para. 268. It is important to note that Article 21 simply establishes that ‘all peoples shall freely dispose of their wealth and natural resources’, without any reference to the need to do so ‘in consultation with the State’.
For a discussion of the right to development in relation to indigenous peoples, see M. Salomon and A. Sengupta, The Right to Development: Obligations of States and the Rights of Minorities and Indigenous Peoples (London: Minority Rights Group, 2003).
Centre for Minority Rights Development (Kenya) v. Kenya, para. 291.
Ibid., para. 290.
Ibid., paras 211–13.
Ibid., para. 214.
Ibid., para. 226.
Ibid.