Non official brief

This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2014-1-e.pdf

Headnotes:

Article 21 of the American Convention on Human Rights (hereinafter, the «ACHR») protects the close relationship between indigenous peoples and their lands, and with the natural resources on their ancestral territories and the intangible elements arising from them. Given this intrinsic connection that indigenous and tribal peoples have with their territory, the protection of property rights and the use and enjoyment thereof is necessary to ensure their survival. Therefore, the protection of the territories of indigenous and tribal peoples also stems from the need to guarantee the security and continuity of their control and use of natural resources. This connection must be upheld to ensure they can continue their traditional way of living, and that their distinctive cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed, and protected by the States.

One of the fundamental guarantees to ensure the participation of indigenous peoples and communities is to recognise their right to consultation. The obligation to consult the indigenous and tribal communities and peoples on any administrative or legislative measure is directly related to the general obligation to guarantee the free and full exercise of the rights recognised in the Convention. This entails the duty to appropriately organise government structures and, in general, all organisations through which public power is exercised. It also includes the obligation to structure laws and institutions so that indigenous, autochthonous or tribal communities can be consulted effectively.

The State must ensure that the rights of indigenous people are not ignored in any other activity or agreement reached with private individuals or in the context of decisions by public authorities. Therefore, the State must also carry out the tasks of inspections and supervision, and when pertinent, deploy effective means to safeguard the rights of indigenous communities through the corresponding judicial organs.

In order to ensure the effective participation of the members of an indigenous community or people in the planning of a development or investment project within their territory, the State is obliged to consult the community in an active and informed manner. These consultations must be undertaken in good faith, conducted in accordance with the indigenous community’s own traditions, and must ensure that the members of the people or the community are aware of the potential benefits and risks of the proposed project. Further, the consultation must take into account traditional decision-making practices of the people or community. Failing to comply with this obligation or engaging in consultations without observing their essential characteristics gives rise to the State´s international responsibility.

The State – not the indigenous people – must prove that all aspects of the right to prior consultation were effectively guaranteed. «Good faith» requires the absence of any form of coercion by the State or by agents or third parties acting with its authority or acquiescence. Furthermore, consultation in good faith is incompatible with practices such as attempts to undermine the social cohesion of the affected communities, either by bribing community leaders establishing parallel leaders, or negotiating with individual members of the community, all of which are contrary to international standards.

The Court has recognised that ‘disregard for the ancestral right of indigenous communities over their territories could affect other basic rights, such as the right to cultural identity and the very survival of indigenous communities and their members.’ Given that the effective enjoyment and exercise of the right to communal ownership of the land ‘guarantees that indigenous communities conserve their heritage,’ States must respect that special relationship in order to guarantee their social, cultural, and economic survival. Under the principle of non-discrimination established in Article 1.1 ACHR, recognition of the right to cultural identity is an ingredient and a crosscutting means of interpretation to understand, respect, and guarantee the enjoyment and exercise of the human rights of indigenous peoples and communities.

The right to cultural identity is a fundamental right and a collective nature of the indigenous communities that should be respected in a multicultural, pluralistic, and democratic society. This means that States have an obligation to ensure that indigenous peoples are properly consulted on matters that affect or could affect their cultural and social life, in accordance with their values, traditions, customs, and forms of organisation.

The State must provide effective judicial remedies to persons who claim to be victims of human rights violations. These remedies must be substantiated in accordance with the rules of due process of law. Furthermore, with regard to indigenous peoples, it is essential that the States grant effective protection that takes into account the inherent particularities of indigenous peoples, their economic and social characteristics, their special vulnerability, and their customary law, values, practices, and customs.

Summary:

I. The case concern the exploration and exploitation of oil resources in a territory of Ecuador known as «Block 23,» of which 65% is ancestrally and legally owned by the Kichwa People of Sarayaku (hereinafter, the «Sarayaku»). In 1996, a State-owned petroleum company signed a contract with two privately owned petroleum companies, enabling the exploration of hydrocarbons and the exploitation of crude oil within Block 23. The State did not appropriately and effectively consult with the Sarayaku regarding the exploration and exploitation of their territory. The community, subsequently, accused one of the private companies of trying to divide the community in order to obtain consent for its activities. As a result of the exploration activities, the Sarayaku experienced the destruction of at least one important spiritual site and of diverse natural resources of great environmental, cultural, and subsistence value to the community. One of the privately owned companies also buried explosives within Sarayaku territory, some at surface level. In 2002, the Sarayaku sought the protection of the Ecuadorian Ombudsman and submitted a constitutional recourse («amparo») before a local court that ordered the cessation of activities that could harm the community. In 2007, the State-owned company ended its partnership with at least one of the privately owned companies.

The Inter-American Commission (hereinafter, the «Commission») filed an application against the State of Ecuador on 26 April 2010 alleging violations of Article 21 ACHR (Right to Property), in relation to Articles 13 (Freedom of Thought and Expression), 23 ACHR (Right to Participate in Government), and Article 1.1 ACHR (Obligation to Respect Rights) thereof, to the detriment of the Sarayaku; Article 4 ACHR (Right to Life), 8 ACHR (Right to a Fair Trial), and 25 ACHR (Right to Judicial Protection), in relation to Article 1.1 thereof, to the detriment of the Sarayaku; Article 22 ACHR (Freedom of Movement and Residence), in relation to Article 1.1 thereof, to the detriment of the Sarayaku; Article 5 ACHR (Right to Humane Treatment), in relation to Article 1.1 thereof, to the detriment of 20 members of the Sarayaku; and Article 2 ACHR (Domestic Legal Effects). In addition, the Commission asked the Court to adopt specific measures of reparation.

The representatives generally agreed with the allegations of the Commission, asking the Court to declare the international responsibility of the State for the alleged violation of the same articles of the American Convention that the Commission had indicated, but with a broader scope. Additionally, the representatives argued that the State had violated Article 26 ACHR (Progressive Development), in relation to Article 1.1 thereof, to the detriment of the Sarayaku; and Article 5 ACHR (Right to Humane Treatment) and 7 ACHR (Right to Personal Liberty), in relation to Article 1.1 thereof, as well as Article 6 of the Inter-American Convention to Prevent and Punish Torture (ICPPT), to the detriment of four Sarayaku leaders that were allegedly detained illegally on 25 January 2003 by the Ecuadorian Army.

On 12 March 2011, the State submitted a preliminary objection on failure to exhaust domestic remedies. In the course of a delegation visit of the Court, the Commission, the State, and the representatives to the territory of the Sarayaku in April 2012, the State made a public statement acknowledging its international responsibility for the alleged human rights violations.

II. In its judgment, the Court declared that the State´s acknowledgement of responsibility should be given full effect as an admission of the facts and as a form of reparation for the human rights violations committed. The Court then proceeded to analyse and specify the scope of those violations. The Court found the State had violated the right to prior consultation, to collective property, and to cultural identity, under Article 21 ACHR, in relation to Articles 1.1 and 2 thereof. The reasons is that it allowed a private oil company to carry out exploration activities in Sarayaku territory without consulting the community. In addition, the Court found the State responsible for severely jeopardising the rights recognised in Articles 4.1 and 5.1 ACHR, in relation to Articles 1.1 and 21 thereof, to the detriment of the Sarayaku, due to the acts committed during the exploration phase of activities, which included the burial of explosives. Finally, the Court found violations of the rights to judicial protection and guarantees established in Articles 8.1 and 25 ACHR, in relation to Article 1.1 thereof, to the detriment of the Sarayaku. The Court declined to analyse the facts presented in light of Articles 7, 13, 22, 23 and 26 ACHR.

Regarding the scope of Article 21 ACHR (Right to Property), the Court noted that Inter-American jurisprudence has established that this provision protects the «close relationship between indigenous peoples and their lands, and with the natural resources on their ancestral territories and the intangible elements arising from these.» While communal and/or collective land ownership schemes may not conform to the classic conception of property, they warrant equal protection under Article 21 ACHR.

Because of indigenous peoples’ intrinsic relationship with their ancestral territory, protection of their property rights and the use and enjoyment thereof is critical to their survival. Consequently, the protection of the natural resources contained within indigenous territories cannot be separated from these rights. This connection between territory and the natural resources therein that have traditionally been used by indigenous communities and are necessary for their physical and cultural survival, must be protected by Article 21 ACHR. In the present case, there was no dispute as to the Sarayaku’s ownership of their territory; this was expressly recognised by the State in 1992. However, the Court emphasised that States must recognise indigenous communities’ right to consultation on measures that may affect their property rights. This right to consultation is established in the ILO Convention no. 169 and other international instruments, and the corresponding obligation to consult is a general principle of international law.

Therefore, the State has the obligation to conduct, in accordance with the community´s customs and traditions, within the framework of continuing communication between the parties, good faith consultations aimed at reaching an agreement. Such consultations must be undertaken in accordance with the indigenous community’s own traditions and during early stages of the development/investment plan. The State bares the obligation to ensure that members of the indigenous community are aware of the potential benefits and risks of the proposed project, on the basis of an environmental and social impact assessment carried out by technically capable and independent entities, and the consultation process must take into account the traditional decision-making practices of the community. The obligation to consult may not be avoided by delegating this task to private entities, in particular, to the entity or party interested in the exploitation of natural resources within the ancestral territory.

In analysing the State’s fulfilment of its obligation to ensure consultation in accordance with the above-noted parameters, the Court began by noting that it was uncontested that the State had failed to undertake any consultation with the Sarayaku. Regarding the requirement of good faith, the Court indicated that the State could not delegate, de facto, its obligation to consult to a private company. In this regard, the Court noted that the State did not even monitor the private company´s actions. In addition, the actions undertaken by the oil company, aimed at breaking down social cohesion through bribery or deals with individual members of the community, or through the creation of parallel leadership structures, cannot be considered a consultation undertaken in good faith. With regard to the environmental impact assessment undertaken, the Court found that the study conducted by the private entity interested in the oil exploitation without State monitoring or control, without the community´s participation, and without taking into account social, spiritual and cultural impacts, all of which was contrary to international standards.

In its previous jurisprudence, the Court has noted that the disregard of indigenous peoples’ rights over their ancestral territories may affect their enjoyment of other rights, such as those to cultural identity and to survival. Because effective ownership and control of their ancestral lands guarantees that indigenous communities can conserve their heritage, States must respect that special relationship to ensure their social, cultural, and economic survival. Further, the Court considers the right to cultural identity a collective, fundamental right of indigenous peoples. In this case, it was undisputed that the private entity involved destroyed or affected zones of high environmental and cultural importance to the community, which are vital to their subsistence. This led to the cancellation of cultural acts and ceremonies, which affected the community´s customs and traditions and generated suffering among its members.

In light of the above, the Court found the State violated Article 22 ACHR, specifically the rights to consultation, cultural identity, and property, in relation to Articles 1.1 and 2 thereof.

Furthermore, the Court pointed to the extensive distribution of explosives throughout the area of the Sarayaku territory (such as areas typically used for hunting) carried out with State support, which became more problematic due to the lack of compliance with the provisional Court order to remove all the explosive material. As such, the Court ruled that the State severely jeopardised the rights enshrined in Article 4.1 ACHR (Right to Life) and 5.1 ACHR (Right to Personal Integrity).

The Court also addressed the alleged violations of rights to judicial guarantees and to judicial protection. Regarding the complaints filed in relation to alleged threats and attacks against members of the Sarayaku, the Court decided that the State had failed to act with due diligence or in accordance with its obligation to guarantee the right to personal integrity recognised in Article 5.1 ACHR. Consequently, the State was found responsible for violating this, in conjunction with Article 1.1 thereof.

With respect to the constitutional complaint (amparo) filed by OPIP (the umbrella organisation for the Kichwa People of Pastaza) relating to activities being conducted by the oil company, the Court found noted the irregularities and delays in processing of the complaint. As such, the State failed to guarantee an effective remedy to the juridical situation violated. Also, it did not ensure that the appropriate competent authority ruled on the rights of the persons who filed the remedy, or that the decisions were executed through effective judicial protections. In light of this, the Court declared the State responsible for breaching Articles 8.1, 25.1, 25.2.a and 25.2.c ACHR, all in relation to Article 1.1 thereof, to the detriment of the Sarayaku.

Accordingly, the Court ordered that the State:

1. neutralise and remove all explosives on the surface and buried within the territory of the Sarayaku;
2. consult with the Sarayaku in a prior, adequate, and effective manner, in accordance with relevant international standards, any time that resource extraction or any other development or investment plan within their territory is proposed;
3. within a reasonable time, adopt the appropriate legislative, administrative, or other measures necessary to give effect to the right to prior consultation of indigenous communities;
4. organise training programs for police, military, and other government officials on the rights of indigenous peoples;
5. carry out an act of public acknowledgment of international responsibility;
6. publish the sentence of the Court in national media; and
7. pay pecuniary and non-pecuniary damages.