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Consultation or Consent?
Indigenous People's Participatory Rights with
regard to the Exploration of Natural Resources
according the UN Declaration on the Rights of
Indigenous Peoples
by
Eva Linde
Thesis submitted in conformity with the requirements
for the degree of Masters of Law (LL.M)
Graduate Department of Law
University of Toronto
© Copyright by Eva Linde 2009
Consultation or Consent?
Indigenous People's Participatory Rights with regard to
the Exploration of Natural Resources according the UN
Declaration on the Rights of Indigenous Peoples
Masters of Law (LL.M), 2009
Eva Linde
Faculty of Law
UNIVERSITY OF TORONTO
Abstract
This thesis examines the development of the right of indigenous peoples to natural resources
on their lands and territories in international law. It examines international treaties, the ju-
risprudence of international courts and other international bodies, as well as the practice of in-
ternational actors. A special focus is on the UN General Assembly Declaration on the Rights
of Indigenous Peoples. The thesis describes the drafting process and the discussions that took
place around the issue of land rights and natural resources, and uses this to draw conclusions
on the development of a new international customary law of an indigenous right to free, prior
and informed consent with regard to natural resources.
III
Table of content
A. Introduction............................................................................................................................ 1
B. The UN Declaration on the Rights of Indigenous Peoples.....................................................3
I. The Drafting Process........................................................................................................... 4
II. Legal Significance of the UN Declaration..........................................................................6
III. The Right to Lands, Territories and Natural Resources in the UN Declaration................8
C. The development of a right to free, prior and informed consent with regard to natural re-
sources in international law........................................................................................................10
I. Background information concerning property right with regard to natural resources.......10
II. Two ways to substantiate Aboriginal sovereignty over natural resources........................12
1. Property Rights in Natural Resources........................................................................... 12
2. Rights over Natural Resources as part of Self-Determination...................................... 13
III. The Development of International Legal Principles with regard to Aboriginal Consent15
1. International Instruments.............................................................................................. 16
2. Decisions and Recommendations of International Bodies............................................18
a) Inter-American Commission on Human Rights and Inter-American Court of Human
Rights............................................................................................................................. 18
b) Reports of Human Rights Bodies............................................................................. 30
c) Policies of International Bodies................................................................................ 33
IV. Concluding observations with regard to the development of international law............. 45
D. How does the UN Declaration reflect and reinforces this current status of international
law?............................................................................................................................................ 46
E. The significance of rights over natural resources for the realization of indigenous rights to
IV
their traditional lands................................................................................................................. 49
F. Conclusion............................................................................................................................ 54
V
Bibliography
I. Books and Journal Articles
Alvarado, Leonardo J. “Prospects and Challenges in the Implementation of In-digenous peoples' Human Rights in International Law: Lessons from the Case of Awas Tingni v. Nicaragua“ (2007) 24 Arizona Journal of International and Compara-tive Law 609.
Amiott, Jennifer A. “Environment, Equality, and Indigenous Peoples' Land Rights in the Inter-American Human Rights System: Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua“ (2002) 32 Environmental Law 873.
Anaya, James S. “Divergent Discourses About International Law, Indige-nous Peoples, and Rights over Lands and Natural Re-sources: Towards a Realist Trend“ (2005) 16 Colorado Journal of International Environmental Law and Policy, 237.
Indigenous Peoples in International Law, 2nd ed. (New York: Oxford University Press 2004).
“Indigenous Peoples' Participatory Rights in Relation to Decisions about Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples have in Lands and Resources” (2005) 22 Arizona Journal of International and Comparative Law 7.
Anaya, S. James & Grossman, Claudio
“The Case of Awas Tingni v. Nicaragua: A Step in the In-ternational Law of Indigenous Peoples” (2002) 19 Ari-zona Journal of International and Comparative Law 1.
Anaya, James S. & Wiessner, Siegfried
“The UN Declaration on the Rights of Indigenous Peo-ples: Towards re-empowerment” (2007) online: JURIST, University of Pittsburgh School of Law, 3 October 2007, available at: http://jurist.law.pitt.edu/forumy/2007/10/un-declaration-on-rights-of-indigenous.php.
Anaya, S. James & Williams, Robert A. Jr.
“The Protection of Indigenous Peoples' Rights over Lands and Natural Resources Under the Inter-American Human Rights System” (2001) 14 Harvard Human Rights Journal 33.
Barrera-Hernandez, Lila “Sovereignty over Natural Resources under Examination:
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The Inter-American System for Human Rights and Natu-ral Resource Allocation“ (2006) 12 Annual Survey of In-ternational and Comparative Law 43.
Brownlie, Ian Principles of Public International Law, 7th ed. (Oxford: Oxford University Press 2008).
Cariño, Joji “Indigenous Peoples' Rights to Free, Prior, Informed Con-sent: Reflections on Concepts and Practice” (2005) 22 Arizona Journal for International and Comparative Law 19.
Castellino, Joshua “Conceptual Difficulties and the Right to Indigenous Self-Determination”, in: Nazila Ghanea & Alexandra Xantha-ki, eds., Minorities, Peoples and Self-Determination (Lei-den: Martinus Nijhoff Publishers 2005), 55.
Cirkovic, Elena “Self-Determination and indigenous peoples in interna-tional law” (2006) 31 American Indian Law Review, 375.
Clavero, Bartolomé “The Indigenous Rights of Participation and International Development Policies” (2005) 22 Arizona Journal of In-ternational and Comparative Law 41.
Daes, Erica-Irene “Indigenous Peoples' Rights to Land and Natural Re-sources”, in: Nazila Ghanea & Alexandra Xanthaki, eds., Minorities, Peoples and Self-Determination (Leiden: Martinus Nijhoff Publishers 2005) 75.
Davidson, Scott The Inter-American Human Rights System (Aldershot, GB: Dartmouth 1997).
Eide, Asbjørn & Alfredsson, Gud-mundur
“Introduction”, in: Asbjørn Eide & Gudmundur Alfreds-son, ed., The Universal Declaration of Human Rights – A Common Standard of Achievement (The Hague: Martinus Nijhoff Publishers 1999).
Errico, Stefania “The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview” (2007) 7 Human Rights Law Re-view 741.
Errico, Stefania “The World Bank and Indigenous Peoples: the Opera-tional Policy on Indigenous Peoples (O.P. 4.10.) Between Indigenous Peoples' Rights to Traditional Lands and to Free, Prior and Informed Consent” (2006) 13 Internation-al Journal on Minority and Group Rights 367.
VII
Getches, David H. “Indigenous Peoples' Rights to Water Under International Norms“ (2005) 16 Colorado Journal of International En-vironmental Law and Policy 259.
Gilbert, Jérémie “Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples” (2007) 14 International Journal on Minority and Group Rights 207.
Henderson, James Sarkej “Mikmaq Tenure in Atlantic Canada” (1995) 18 Dal-housie Law Journal 196.
Hillemanns, Carolin “UN Norms on the Responsibilities of Transnational Cor-porations and Other Business Enterprises with regard to Human Rights” (2003) online: 4 German Law Journal 1065 at 1065, available at: http://www.germanlawjour-nal.com/article.php?id=330.
Holder, Cindy “Self-determination as a basic human right: the Draft UN Declaration on the Rights of Indigenous Peoples”, in Avi-gail Eisenberg & Jeff Spinner-Halev, Minorities within Minorities: Equality, Rights and Diversity (Cambridge: Cambridge University Press: 2004), 294.
Huff, Andrew “Indigenous Land Rights and the New Self-Determina-tion” (2005) 16 Colorado Journal of International Envi-ronmental Law and Policy 295.
Klug, Francesca “The Universal Declaration of Human Rights: 60 years on” (2009) 2 Public Law 205.
Kreimer, Osvaldo “The Future Inter-American Declaration on the Rights of Indigenous Peoples: A Challenge for the Americas”, in: Cynthia Price Cohen, ed., Human Rights of Indigenous Peoples (Ardsley, N.Y.: Transnational Publishers 1998) 63.
MacKay, Fergus “Indigenous Peoples' Right to Free, Prior and Informed Consent and the World Bank's Extractive Industries Re-view” (2004) 4 Sustainable Development Law and Policy 43.
“The Draft World Bank Operational Policy 4.10 on In-digenous Peoples: Progress or More of the Same?” (2005) 22 Arizona Journal of International and Comparative Law 65.
VIII
Macklem, Patrick “Indigenous Recognition in International Law: Theoreti-cal Observations“ (forthcoming).
Matas, David “The Universal Declaration of Human Rights: fifty years later” (2000) 46 McGill Law Journal 203.
Oppenheim, Lassa International Law – A Treatise, vol. 1, 9th ed., ed. by Sir Robert Jennings and Sir Arthur Watts (Harlow, Essex: Longman 1992).
Re, Edward D. “The Universal Declaration of Human Rights: effective remedies and the domestic courts” (2003) 33 California Western International Law Journal 137.
Sanders, Douglas “The Legacy of Deskaheh: Indigenous Peoples as Interna-tional Actors”, in: Cynthia Price Cohen, ed. The Human Rights of Indigenous Peoples (Ardsley, N.Y.: Transna-tional Publishers, 1998), 73.
Shaw, Malcolm N. International Law, 6th ed. (Cambridge: Cambridge Uni-versity Press 2008).
Stellato Gabrielli, Joy Indigenous Peoples and Land Rights (Roma: Lateran Uni-versity Press 2003).
Washington College of Law at American University
“Updates from the Regional Human Rights Systems” (2005) online: 13 Human Rights Brief, 25 at 28, available at: www.wcl.american.edu/hrbrief/13/humanrights_sys-tems.pdf?rd=1.
Wiessner, Siegfried “Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples“ (2008) 41 Vanderbilt Journal of Transnational Law 1141.
“Rights and Status of Indigenous Peoples: A Global Com-parative and International Legal Analysis” (1999) 12 Har-vard Human Rights Journal 57.
Xanthaki, Alexandra Indigenous Peoples and United Nations Standards (Cam-bridge: Cambridge University Press 2007).
Xanthaki, Alexandra “The Right to Self-Determination: Meaning and Scope”, in: Nazila Ghanea & Alexandra Xanthaki, eds., Minori-ties, Peoples and Self-Determination (Leiden: Martinus Nijhoff Publishers 2005), 15.
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II. Documents of International Organizations
1. United Nations Documents
Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/38/Rev.2 (2003), available at: http://www1.umn.edu/humanrts/links/commentary-Aug2003.html.
Daes, Erica-Irene, Indigenous Peoples and their Relationship to Land – Final Working Paper Prepared by the Special Rapporteur, UN Sub-Commission for the Promotion and Protection of Human Rights, UN Doc. E/CN.4/Sub.2/2001/21 of 11 June 2001.
Martinez-Cobo, José R., Study of Discrimination Against Indigenous Populations, vol. V, Conclusions, Proposals and Recommendations, UN Doc. E/CN.4 Sub.2 /1983/21/Add.8, available at: http://www.wwan.cn/esa/socdev/unpfii/en/spdaip.html.
Nieva, Eduardo, “Ponencia sobre las Industrias Extractivas en Territorios Indígenas y la Leg-islación Internal en las Americas - Derecho de Consulta y Participación. Consentimiento pre-via, libre e informado” (2004) Inter-American Commission on Human Rights, General Hear-ing (4 March 2004 - Washington, D.C.)
Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003), approved by the U.N. Sub-Commission on the Promotion and Protection of Human Rights, Res. 2003/16 of 13 August 2003, E/CN.4/Sub.2/2003/L.11, available at: http://www1.umn.edu/humanrts/links/norms-Aug2003.html.
Tamang, Parshuram, “An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices”, U.N. Workshop on Free, Prior and Informed Consent (New York, 17-19 January 2005), U.N. Doc PFII/2004/WS.2/8.
UN Commission on Human Rights, “Chairman's summary of proposals”, Eleventh session, in: Commission on Human Rights, Sixty-second session, UN Doc. E/CN.4/2006/79 (22 March 2006).
UN Commission on Human Rights, “Chairperson's summary of proposals”, Sixty-second session, UN Doc. E/CN.4/2005/WG.15/CRP. 7 (20 December 2005).
UN Commission on Human Rights, “Draft report of the working group established in accor-dance with the Commission on Human Rights resolution 1995/32”, Sixty-first session, UN
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Doc. E/CN.4/2004/WG.15/CRP.7 (16 December 2004).
UN Committee of the International Convention against all Forms of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Australia, CERD/C/AUS/CO/14, 14 April 2005.
UN Committee of the International Convention against all Forms of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Ecuador, CERD/C/62/CO/2, 21 March 2003.
UN Committee of the International Convention against all Forms of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Nigeria, CERD/C/NGA/CO/18, 1 November 2005.
UN Committee of the International Convention against all Forms of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Suriname, CERD/C/64/CO/9, 28 April 2004.
UN Committee of the International Convention against all Forms of Racial Discrimination, General Recommendation XXIII on Indigenous Peoples, UN Doc. CERD/C/365, in A/52/18, Annex V (1997).
UN Convention on Biological Diversity, June 5, 1992, 31 I.L.M. (1992), 818, available at: http://www.cbd.int/convention/convention.shtml.
UN Convention on Biological Diversity, Conference of Parties Decision V/16 on Article 8(j) and related provisions, available at: http://www.cbd.int/decision/cop/?id=7158.
United Nations Development Group Fact Sheet, May 2009, available at: http://www.und-g.org/docs/1864/UNDGFactSheet_5-22-09_viewing.pdf.
United Nations Development Group, Guidelines on Indigenous Peoples' Issues, February 2008, available at: http://www.undp.org/partners/cso/indigenous/docs/UNDG_guidelines_on_Indigenous_Peo-ples_Issues_2008.pdf.
UN Development Programme, Regional Initiative on Indigenous Peoples' Rights and Devel-opment (RIPP), launched in September 2004, available at: http://regionalcentrebangkok.und-p.or.th/practices/governance/ripp/.
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UN Development Programme, UNDP and Indigenous Peoples: a Practice Note on Engage-ment (2001), at para. 3, available at: http://www.undp.org/partners/cso/indigenous.shtml.
UN ECOSOC Resolution 1982/34 of 7 May 1982, UN Doc. E/RES/1982/34
UN ECOSOC, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, “Prevention of Discrimination and Protection of Indigenous Peoples – Indigenous peoples' permanent sovereignty over natural resources”, Final report of the Special Rapporteur, Erica-Irene A. Daes, E/CN.4/Sub.2/2004/30/Add.1, 12 July 2004.
UN ESCOR, 45th Session, 35th Meeting, at 2, UN Doc. E/CN.4/Sub.2/1993/SR.35 (1994).
UN GA, United Nations Declaration on Permanent Sovereignty over Natural Resources, UN Res. 1803 (XVII)
UN GA, United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 of 13 September 2007, available at: http://www.un.org/esa/socdev/unpfii/en/drip.html.
UN GA Resolution 61/295 of 13 September 2007, Annex, U.N. Doc. A/RES/61/295, availa-ble at http://www2.ohchr.org/english/issues/indigenous/declaration.htm.
UN Human Rights Committee, Concluding Observations on Canada, UN Doc. CCPR/C/79/Add.105 of 7 April 1999.
UN Human Rights Committee, General Comment No. 23 (50): The rights of minorities (Arti-cle 27), UN Doc. CCPR/C/21/Rev.1/Add.5 of 8 April 1994.
UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc. A/HRC/9/9 of 11 August 2008.
UN Human Rights Council, Working Group of the Commission on Human Rights to Elabo-rate a Draft Declaration in Accordance with Paragraph 5 of the General Assembly Resolution 49/214 of 23 December 1994, UN Doc. A/HRC/RES/1/2 of 29 June 2006.
United Nations Department of Public Information, “Indigenous People: The Significance of Land to Indigenous Peoples”, DPI/2068, 99-26210, October 1999.
United Nations Office at Geneva, News and Media, “UN Experts Welcome Canadian House
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of Commons Endorsement of the Declaration of the Rights of Indigenous Peoples”, 18 April 2008, online at http://www.unog.ch/80256EDD006B9C2E/(httpNewsByYear_en)/0D-F2B67C18A6B662C125742F00321882?OpenDocument.
UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Draft Declaration on the Rights of Indigenous Peoples, UN Doc. E/CN.4/1995/2; E/CN.4/Sub.2/1994/56, October 28, 1994, reprinted in 34 I.L.M. 541-555, adopted by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, 46th Session, 1994, Resolution 1994/45.
UN Working Group on Indigenous Populations, Report of the Working Group on Indigenous Populations on its eleventh session, UN Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, 45th Session, Annex I, Agenda Item 14 at 50-51, UN Doc. E/CN.4/Sub.2/1993/29.
2. Other International Organizations
American Convention on Human Rights of 1969, OAS Treaty Series No. 36, 1144 U.N.T.S. 123.
American Declaration on the Rights and Duties of Man of 1948, OEA, AG/RES 1591 (XXVIII-O/98); OEA/Ser.L.V./II 82 doc.6 rev.1 at 17 (1992).
Australian Human Rights Commission, “United we stand – Support for United Nations In-digenous Rights Declaration a watershed moment for Australia”, 3 April 2009, online at http://www.hreoc.gov.au/about/media/media_releases/2009/21_09.html.
Commission of the European Union, Report from the Commission to the Council – Review of Progress of Working with Indigenous Peoples, COM/2002/0291 of 11 June 2002, available at: http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2002&nu_doc=291.
European Union Council of Ministers, Resolution 13461/98 on “Indigenous Peoples within the Framework of the Development Cooperation of the Community and Member States”, 30 November 1998, available at: http://www.fern.org/pubs/eudocs/indigres.htm.
Goodland, Robert, Economic Development and Tribal Peoples: Human Ecologic Considera-
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tions (Washington D.C.: World Bank Group Study 1982).
Inter-American Charter of Social Guarantees of 1948, International Conferences of American States, Second Supplement, 1942-1954, Washington, D.C.: Pan American Union, 1958, 262.
Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96 Doc. 10 rev. 1, 24 April 1997, available at: www.cidh.oas.org/countryrep/ecuador-eng/chaper-9.htm.
Inter-American Development Bank, Environmental Committee, “Strategies and Procedures on Sociocultural Issues as Related to the Environment“ (Washington, D.C.: June 1990), available at: http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=362137.
Inter-American Development Bank, “Operational Policy on Indigenous Peoples and Strategy for Indigenous Development”, OP-765 and strategy GN-2387-5, adopted on 22 February 2006, available at: http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=1442296.
Inter-American Development Bank, Report on the Eights General Increase in the Resources of the Bank (1994), Doc. AB-1704.
International Labour Organization, Convention No. 107 of 1957 on the Protection and Inte-gration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries, available at: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C107.
International Labour Organization, Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, available at: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169.
International Labor Organization, Ratification chart for Convention No. 169, available at: http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169.
OAS, Additional Protocol to the American Convention on Human Rights in the Area of Eco-nomic, Social and Cultural Rights (Protocol of San Salvador), 17 November 1988, OAS Treaty Ser. 69, Treaty A-52.
OAS, American Convention on Human Rights, OAS Treaty Series No. 36, 1144 U.N.T.S. 123.
OAS, American Convention on Human Rights, Chart of Signatures and Current Status of Ratifications, available at: http://www.cidh.oas.org/Basicos/English/Basic4.Amer.Con-
XIV
v.Ratif.htm.
OAS, American Declaration on the Rights and Duties of Man, OEA, AG/RES 1591 (XXVI-II-O/98); OEA/Ser.L.V./II 82 doc.6 rev.1 at 17 (1992).
OAS General Assembly Res. 1022 (XIX-0/89), OAS General Assembly Proceedings, 19th Regular Session, Vol. 1 OEA/Ser.P/XIX.0.2, Washington, D.C. 1989.
OAS, Inter-American Commission on Human Rights, Annual Report 1996, OEA/Ser.L/V/II.95, doc 7, rev. Mar. 1997.
OAS, Inter-American Convention to Prevent and Punish Torture, 9 December 1985, OAS Treaty Ser. 67, Treaty A-51.
OAS, Permanent Council, Committee on Judicial and Political Affairs, Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples, online at: http://www.oas.org/consejo/cajp/Indigenous.asp.
OAS, Protocol of Buenos Aires of Amendment to the Charter of the OAS, 27 February 1967, OAS Treaty Ser. No. 1-A, Treaty B-31.
OAS, Statute of the Inter-American Court of Human Rights, Adopted by the General Assem-bly of the OAS at its Ninth Regular Session in October 1979, Res. 448.
World Bank, “Comments on World Bank Management Response to the Final Report of the Extractive Industries Review”, submitted by Indigenous Peoples' Organisations, 18 July 2004, available at: http://eireview.info/doc/IP%20EIR%20ManRes-short-sig.doc
World Bank Group, Extractive Industries and Sustainable Development: An Evaluation of World Bank Group Experience, July 29, 2003.
World Bank, Office of Environmental and Scientific Affairs, A Five-Year Implementation Review of OMS 2.34 (1982-1987), World Bank, Projects Policy Department, June 1987.
World Bank Operational Directive 4.20 on Indigenous Peoples, September 1991, available at: http://hei.unige.ch/~clapham/hrdoc/docs/WBOD4.20.htm.
World Bank Operational Policy 4.10 – Indigenous Peoples of 20 May 2005, available at: http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMAN-UAL/0,,contentMDK:20553653~pagePK:64141683~piPK:64141620~theSitePK:502184,00.
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html.
World Bank Round Table Discussion of Indigenous Representatives and the World Bank on the Revision of the World Bank's Indigenous Policy, 18 October 2002, available at: http://forestpeoples.gn.apc.org/Briefings/World%20Bank/wb_ip_round_table_summary_oct_02_eng_pdf.
World Commission on Dams, Dams and Development: A New Framework for Decision-Ma-king, 2000, available at: http://www.dams.org//docs/report/wcdreport.pdf.
World Commission on Dams, Outline of the WCD, Introduction, available at: http://ww-w.dams.org/commission/intro.htm.
III. Case law
Inter-American Commission on Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Report No. 27/98 of 3 March 1998.
Inter-American Commission on Human Rights, Case of Yanomami Indigenous Community v. Brazil, Res. 12/85, Case 7615, Brazil, March 5, 1985, found in: “The Situation of the Human Rights of Indigenous Peoples”, OEA/Ser.L/V/II.108, doc. 62, 125-137 (20 October 2000).
Inter-American Commission on Human Rights, Complaint of the Inter-American Commis-sion of Human Rights against the Republic of Nicaragua in the Case of the Mayagna (Sumo) Indigenous Community of Awas Tingni, reprinted in: Anaya, S. James & Grossman, Claudio, “The Case of Awas Tingni v. Nicaragua: A Step in the International Law of Indigenous Peo-ples” (2002) 19 Arizona Journal of International and Comparative Law 1 at 17 ff.
Inter-American Court of Human Rights, Case of Maya Indigenous Communities of the Tole-do District v. Belize, Case no. 12.053, Report No. 40/04, OEA/Ser.L/V/II.122 doc rev 1, available at: www.cidh.oas.org/annualrep/2004eng/Belize.12053eng.htm.
Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Commu-nity v. Nicaragua, Judgment of August 31, 2001, Am. Ct. H.R. (Ser C), No. 79.
Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Commu-nity v. Nicaragua, Judgment of August 31, 2001, Am. Ct. H.R. (Ser C), No. 79, Concurring Opinion of Judge Sergia García Ramírez in the Judgment on the Merits and Reparations,
XVI
reprinted in Anaya, S. James & Grossman, Claudio, “The Case of Awas Tingni v. Nicaragua: A Step in the International Law of Indigenous Peoples” (2002) 19 Arizona Journal of Interna-tional and Comparative Law 1 at 449.
Inter-American Court of Human Rights, Case of Moiwana Village v. Suriname, Series C, No. 124 (June 15, 2005), available at: www.corteidh.or.cr/docs/casos/articulos/seriec_124_in-g.pdf.
Inter-American Court of Human Rights, Case of Plan de Sanchez Massacre v. Guatemala (Reparations), IACtHR Ser. C 116, Judgment of 19 November 2004.
Inter-American Court of Human Rights, Case of Yakye Axa Indigenous Community v. Paraguay, Series C, No. 125 (June 15, 2005), available at: www.corteidh.or.cr/docs/casos/ar-ticulos/seriec_125_ing.pdf.
IV. Other sources
Amnesty international Canada, “UN Declaration on the Rights of Indigenous Peoples: Cana-dian Parliament Calls for Implementation of Critical Universal Human Rights Instrument”, 9 April 2008, online at http://www.amnesty.ca/resource_centre/news/view.php?load=arcview&article=4279&c=Re-source+Centre+News.
International Network for Economic, Social & Cultural Rights, Case summary, Comunidad Yanomami, Caso No 7615, Resolución No 12/85, at: http://www.escr-net.org/caselaw/case-law_show.htm?doc_id=412519.
Radio New Zealand News, “NZ to ratify UN indigenous declaration – Sharples“, 7 July 2009, online at http://www.radionz.co.nz/news/stories/2009/07/07/1245bb75e887.
Hagen, Robert, “Position of the United States on the Rights of Indigenous Peoples”, Press Release #204(07) by the United States Mission to the United Nations, 13 September 2007, available at: http://www.shunpiking.com/ol0406/0406-IP-positionofUS.htm.
1
A. Introduction
For years, states in all parts of the world have allowed or closed their eyes to the deprivation of
lands previously occupied by indigenous peoples. Or such lands have been destroyed by large
scale logging, pollution, exploration of oil or gas, or the extraction of other natural resources and
the construction of facilities and roads that go hand in hand with it.
What participatory rights aboriginal peoples have with regard to natural resource exploitation and
management has been the subject of much controversial debate over years. Is there a duty for the
state to consult with aboriginal groups, and to what extent does their opinion have to be taken into
account? Or is there even a duty to obtain their prior consent? The state of international law in
this regard is by no means clear. The few existing treaties that deal with indigenous rights have
not been ratified by the majority of states, and they partly reflect outdated perceptions of how to
integrate aboriginals into society. On the other hand, many international bodies have been
actively pursuing indigenous rights. At the forefront of this trend are the Inter-American
Commission on Human Rights and the Inter-American Court of Human Rights, which in a
number of cases have interpreted existing treaties to include indigenous rights. Furthermore,
international institutions have adopted their own policies for dealing with aboriginal peoples'
lands and resources that differ from one another.
The recent Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly of
the United Nations on 13 September 2007 (hereinafter: “the UN Declaration” or “the
Declaration”), states in Article 32 para. 2 that a state shall consult and cooperate in good faith
with indigenous peoples in order to obtain their free and informed prior consent with regard to
extraction and utilization of natural resources.1 While a declaration by its nature does not have 1 United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 of 13 September 2007, available at: http://www.un.org/esa/socdev/unpfii/en/drip.html.
2
legally binding effect, this paper is going to argue that the provision contained in Article 32 para.
2 is already part of customary international law and as such binding on all states. While the
current state of the law is, as mentioned, confused, there has been a clear development over the
years towards acknowledging participatory rights of aboriginal peoples. Even further, when
examining the jurisprudence of international bodies and the activities of other international actors
in this regard, it becomes clear that a new standard of international law has developed which
recognizes that there is a duty to obtain the free, prior and informed consent of indigenous
peoples when undertaking activities of exploration, use or extraction of natural resources on their
traditional lands.
To support this thesis, the paper is going to examine the evolution of the duty to obtain free, prior
and informed consent in international instruments such as treaties, declarations, and acts by
international bodies. It argues that the drafting process of the UN Declaration has been
significantly influenced by those developments, and that the provision of the Declaration which
requires states to seek the consent of indigenous peoples reflects the current state of international
law.
Section B gives an overview of the respective provision of the UN Declaration dealing with the
right to lands and natural resources. It describes the drafting process and the opposition with
which the Declaration was confronted, as well as explaining its legal significance.
Part C describes the developments that have taken place in international law with regard to the
right to free, prior and informed consent. The focus is especially on the relevant treaties and the
jurisprudence and decisions of international bodies, which have advanced the law. But it also
includes the policies of other international actors, which demonstrate a new understanding of the
rights and obligations in this field.
3
Part D places the UN Declaration within the context of this evolving frame of law. It describes the
discussions during the drafting process, especially with regard to land rights and the right to free,
prior and informed consent, and shows how the state parties ultimately accepted such a right as
the current state of the law. On the flip-side of the coin, the entrenchment of the right to free, prior
and informed consent in the Declaration gives additional force to its establishment as a customary
law norm.
Finally, in Section E, the paper makes a moral argument that a right to free, prior and informed
consent is necessary for the effective protection of aboriginal peoples' rights to their culture,
traditions and lifestyle, because natural resources have a special significance for them. It takes up
the common criticism that a duty to obtain consent gives too much power to a group over the
general population of a state, and argues that such a right is, however, necessary and justified in
order to preserve aboriginal identity. Section F concludes.
B. The UN Declaration on the Rights of Indigenous Peoples
For a long time there was no one comprehensive instrument on the protection of indigenous
rights, but only sectoral provisions scattered in various international and regional agreements.
When the UN Declaration was finally adopted by the General Assembly in 2007 by an
unexpected landslide affirmative vote of 144 states with only four states against (United States,
Canada, Australia and New Zealand) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan,
Burundi, Colombia, Georgia, Kenya, Nigeria, Russia, Samoa and Ukraine), this was seen as a
clear victory for the indigenous cause.
4
I. The Drafting Process
The Declaration has come a long way and has undergone much scrutiny, criticism and opposition
from the presentation of the first draft in 1993 until the final adoption by the UN General
Assembly in 2007.2 In 1982 the United Nations Economic and Social Council (ECOSOC)
established a Working Group on Indigenous Populations with the task to draft standards
concerning the rights of indigenous populations.3 The Working Group conducted the drafting
process in a partnership between experts and representatives of indigenous peoples. Every
indigenous group that wanted to participate received five minutes to bring their complaints and
concerns to the attention of the drafting group.4 In 1993 the Working Group finally agreed on a
Draft Declaration on the Rights of Indigenous Peoples.5 It thereby went beyond its mandate by
changing the terminology from populations to peoples, an issue that was very controverse with
states for fear that the recognition as a people would arise claims of external self-determination.6
The UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities
adopted the draft without amendment in 1994.7 It then when through a seemingly never ending
review in the UN Commission on Human Rights and was rather surprisingly adopted by the
2 For details on the drafting process, see e.g. Errico, Stefania, “The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview” (2007) 7 Human Rights Law Review 741; Gilbert, Jérémie, “Indigenous Rights in the Mak-ing: The United Nations Declaration on the Rights of Indigenous Peoples” (2007) 14 International Journal on Minori-ty and Group Rights 207.3 UN ECOSOC Resolution 1982/34 of 7 May 1982, UN Doc. E/RES/1982/34; for details of the process of establish-ing the Working Group see Sanders, Douglas, “The Legacy of Deskaheh: Indigenous Peoples as International Actors”, in: Cynthia Price Cohen, ed. The Human Rights of Indigenous Peoples (Ardsley, N.Y.: Transnational Pub-lishers, 1998), 73.4 Wiessner, Siegfried, “Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of In-digenous Peoples“ (2008) 41 Vanderbilt Journal of Transnational Law 1141 at 1153 [Wiessner, “Indigenous Sovereignty”].5 Working Group on Indigenous Populations, Report of the Working Group on Indigenous Populations on its eleventh session, U.N. Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Pro-tection of Minorities, 45th Session, Annex I, Agenda Item 14 at 50-51, UN Doc. E/CN.4/Sub.2/1993/29.6 See Wiessner, Siegfried, “Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis” (1999) 12 Harvard Human Rights Journal 57 at 101-102.7 UN ESCOR, 45th Session, 35th Meeting, at 2, UN Doc. E/CN.4/Sub.2/1993/SR.35 (1994).
5
newly formed Human Rights Council in 2006.8 Thereafter, another year of discussion in the UN
General Assembly followed before the Declaration was finally adopted on September 13, 2007 by
a majority of 144 against four, with eleven abstentions.9
The Declaration affirms indigenous peoples’ right to protect their cultures and traditions, and
promotes education, health care and other human rights issues that affect indigenous groups.
Perhaps most importantly, the Declaration explains that indigenous peoples have the right to self-
determination. By virtue of that right they freely determine their political status and freely pursue
their economic, social and cultural development.10 Furthermore, the Declaration affirms that
indigenous peoples 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.11
Disagreement on and opposition to the declaration were based on very fundamental issues. States
critiqued the absence of a definition of indigenous peoples, and negated the very concept of
collective rights in international law.12 The inclusion of a right to self-determination was the cause
of much debate and protest especially by the African states, Argentina, Brazil, and the United
States, which were concerned that it would give rise to secessionist movements among
indigenous groups.13 Finally, many states opposed the provisions foreseeing restitution of
traditional lands.14 Considering this opposition to principles laying at the base of the Declaration,
8 Human Rights Council, Working Group of the Commission on Human Rights to Elaborate a Draft Declaration in Accordance with Paragraph 5 of the General Assembly Resolution 49/214 of 23 December 1994, UN Doc. A/HRC/RES/1/2 of 29 June 2006.9 UN GA Resolution 61/295 of 13 September 2007, Annex, U.N. Doc. A/RES/61/295, available at http://www2.oh-chr.org/english/issues/indigenous/declaration.htm.10 Declaration on the Rights of Indigenous Peoples, supra note 1, Art. 3.11 Ibid. Art. 4.12 See Gilbert, supra note 2 at 215 ff.13 Holder, Cindy, “Self-determination as a basic human right: the Draft UN Declaration on the Rights of Indigenous Peoples”, in Avigail Eisenberg & Jeff Spinner-Halev, Minorities within Minorities: Equality, Rights and Diversity (Cambridge: Cambridge University Press: 2004), 294, 305 ff; Wiessner, “Indigenous Sovereignty”, supra note 4 at 1160.14 Gilbert, supra note 2 at 226 ff.
6
its final adoption with such an overwhelming majority can be regarded as a great success.
While four countries voted in opposition of the Declaration in the General Assembly, two of those
have since expressed their support. The Canadian House of Commons on 8 April 2008 endorsed
the Declaration and called on the Parliament and Government to fully implement it.15 The
Australian government gave its formal support to the Declaration on 3 April 2009.16 After these
precedent, the New Zealand government also seems to be on its way to formally expressing its
support for the declaration.17
II. Legal Significance of the UN Declaration
As a declaration by the General Assembly, the Declaration on the Rights of Indigenous Peoples
has no binding force such as a treaty.18 However, it is also not simply a statement, but to the
contrary, some of past General Assembly declarations have gained significant status in
international law.19 Simply the name of a “Declaration” gives the document a certain solemnity.20
Other General Assembly Declarations in the field of Human Rights have, in spite of their non-
15 See United Nations Office at Geneva, News and Media, “UN Experts Welcome Canadian House of Commons En-dorsement of the Declaration of the Rights of Indigenous Peoples”, 18 April 2008, online at http://www.unog.ch/80256EDD006B9C2E/(httpNewsByYear_en)/0DF2B67C18A6B662C125742F00321882?Open-Document; amnesty international Canada, “UN Declaration on the Rights of Indigenous Peoples: Canadian Parlia-ment Calls for Implementation of Critical Universal Human Rights Instrument”, 9 April 2008, online at http://www.amnesty.ca/resource_centre/news/view.php?load=arcview&article=4279&c=Resource+Centre+News. 16 See Australian Human Rights Commission, “United we stand – Support for United Nations Indigenous Rights Dec-laration a watershed moment for Australia”, 3 April 2009, online at http://www.hreoc.gov.au/about/media/media_re-leases/2009/21_09.html.17 See Radio New Zealand News, “NZ to ratify UN indigenous declaration – Sharples“, 7 July 2009, online at http://www.radionz.co.nz/news/stories/2009/07/07/1245bb75e887. 18 See e.g. Brownlie, Ian, Principles of Public International Law, 7th ed. (Oxford: Oxford University Press 2008) at 694; Oppenheim, Lassa, International Law – A Treatise, vol. 1, 9th ed., ed. by Sir Robert Jennings and Sir Arthur Watts (Harlow, Essex: Longman 1992) at 424; Shaw, Malcolm N., International Law, 6th ed. (Cambridge: Cam-bridge University Press 2008) at 1212; Anaya, James S. & Wiessner, Siegfried, “The UN Declaration on the Rights of Indigenous Peoples: Towards re-empowerment” (2007) online: JURIST, University of Pittsburgh School of Law, 3 October 2007, available at: http://jurist.law.pitt.edu/forumy/2007/10/un-declaration-on-rights-of-indigenous.php. 19 Oppenheim, ibid. at 424.20 Anaya & Wiessner, supra note 18.
7
binding status, risen to extraordinary significance. As a prominent example, the Universal
Declaration on Human Rights is frequently cited as an authoritative document with regard to
human rights standards.21 Such a declaration can furthermore be regarded as an element of state
practice, and thus, among others, can lead to the development of new customary international
law.22
In the view of UN Special Rapporteur on the Situation of Human Rights and Fundamental
Freedoms of Indigenous People, James S. Anaya, the UN Declaration on the Rights of Indigenous
Peoples constitutes “an authoritative common understanding, at the global level, of the minimum
content of the rights of indigenous peoples, upon a foundation of various sources of international
human rights law (...)”23 Various scholars have joined him in this understanding, stating, as
Bartolomé Clavero did:
“The Draft Declaration of Indigenous Rights is but a new step in the development of the international human rights regime that builds on the Universal Declaration on Human Rights. It is presented in declarative terms exactly because the instrument does not create these rights out of thin air, but instead confirms their prior existence and gives them practical meaning.“24
21 Eide, Asbjørn & Alfredsson, Gudmundur, “Introduction”, in: Asbjørn Eide & Gudmundur Alfredsson, ed., The Universal Declaration of Human Rights – A Common Standard of Achievement (The Hague: Martinus Nijhoff Pub-lishers 1999) at 6 ff.; Klug, Francesca, “The Universal Declaration of Human Rights: 60 years on” (2009) 2 Public Law 205 at 206 ff.; Matas, David, “The Universal Declaration of Human Rights: fifty years later” (2000) 46 McGill Law Journal 203 at 204 ff.; Re, Edward D., “The Universal Declaration of Human Rights: effective remedies and the domestic courts” (2003) 33 California Western International Law Journal 137 at 144.22 Brownlie, supra note 18 at 694; Shaw, supra note 18 at 1212.23 UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc. A/HRC/9/9 of 11 August 2008 at para. 85.24 Clavero, Bartolomé, “The Indigenous Rights of Participation and International Development Policies” (2005) 22 Arizona Journal of International and Comparative Law 41 at 43.
8
III. The Right to Lands, Territories and Natural Resources in the UN Declaration
Aboriginal peoples' relationship to their traditional lands and territories is recognized in the
Declaration and given specific protection in Articles 25 to 32. At the outset, Article 25 ensures
that “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual
relationship with their traditionally owned or otherwise occupied and used lands, territories,
waters and coastal seas and other resources and to uphold their responsibilities to future
generations in this regard.”
The basic rights stemming from this are enlisted in Article 26:
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 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.
With regard to aboriginal peoples' rights to natural resources, the most significant provision is
Article 32 which determines:
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
9
The term natural resources is wide and can include such things as air, coastal seas, coastal ice,
timber, minerals, oil, gas, as well as genetic resources and all other materials pertaining to
indigenous lands and territories.25 The Preamble of the Declaration further emphasizes that
“control by indigenous peoples over developments affecting them and their lands, territories and
resources will enable them to maintain and strengthen their institutions, cultures and traditions,
and to promote their development in accordance with their aspirations and needs”.26
Another important provisions concerning lands and territories is included in Article 10, which
ensures that “Indigenous peoples shall not be forcibly removed from their lands or territories. No
relocation shall take place without free, prior and informed consent of the indigenous peoples
concerned and after agreement on just and fair compensation and, where possible, with the option
of return.”
Articles 18 and 19 more generally state that “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” and that “States shall consult and cooperate in
good faith with indigenous peoples concerned through their own representative institutions in
order to obtain their free, prior and informed consent before adopting and implementing
legislative or administrative measures that may affect them.”
25 Daes, Erica-Irene, “Indigenous Peoples' Rights to Land and Natural Resources”, in: Nazila Ghanea & Alexandra Xanthaki, eds., Minorities, Peoples and Self-Determination (Leiden: Martinus Nijhoff Publishers 2005) 75 at 88.26 Preamble, para. 10.
10
C. The development of a right to free, prior and informed consent with regard to natural
resources in international law
The participatory rights of first nations with regard to their lands and the natural resources on
them have been developed over decades in many international instruments and even more in the
jurisprudence of international courts and bodies, as well as the practice of international
institutions. While written treaties are always slow to develop, the judicial and monitoring bodies
of international organizations have proved much more flexible in advancing indigenous rights by
means of wide interpretations of existing provisions.
The following section is going to first lay out the principles from which a duty to obtain free,
prior and informed consent before engaging in exploration of issues surrounding natural
resources. It then describes the developments that have taken place in international law up to the
adoption of the UN Declaration.
I. Background information concerning property right with regard to natural resources
The issue of aboriginal sovereignty over natural resources has to start with the regular principles
of ownership. The question here is who, according to the law, holds the title over natural
resources: the owner of the land on which the resources are found, or the state.
Two different approaches exist in this regard. “The Roman system, which is prevalent throughout
most countries today, provides the state with subsurface rights regardless of who owns the land in
question.”27 This is based on a utilitarian thinking, which upholds the state's sovereign rights over
natural resources and the concept of its beneficial use for everyone.28 In comparison, land 27 Stellato Gabrielli, Joy, Indigenous Peoples and Land Rights (Roma: Lateran University Press 2003) at 104.28 Barrera-Hernandez, Lila, “Sovereignty over Natural Resources under Examination: The Inter-American System for Human Rights and Natural Resource Allocation“ (2006) 12 Annual Survey of International and Comparative Law 43
11
ownership under the Anglosaxon system entails ownership of subsurface resources.29
In international law, UN General Assembly Resolution 1803 (XVII) of 14 December 1962 on
Permanent Sovereignty over Natural Resources is the main instrument dealing with the topic. It
affirms the inalienable right of all states freely to dispose of their natural wealth and resources in
accordance with their national interests30 and declares that “[t]he right of peoples and nations to
permanent sovereignty over their natural wealth and resources must be exercised in the interest of
their national development and of the well-being of the people of the State concerned.”31 Initially,
the declaration's focus was only on colonial peoples and offered them protection from
exploitation by their colonizing powers. The terminology, which revolves around the state as the
bearer of sovereign power, but also mentions the right of peoples and nations, has to be
understood with regard to this background.32 However, the focus soon shifted towards a general
understanding of state sovereignty over resources, as contrary to private ownership and
exploitation.33 A state-centered notion is not the only possible understanding, though, as the
declaration equally talks about the rights of peoples. This termination does not need to be set
equal with the people of a nation-state, but allows for a wider interpretation. Accordingly, today
the notion that sovereignty over natural resources lies with the sovereign state is again being
challenged by new concepts, especially with regard to self-determination of peoples.
at 44.29 Stellato Gabrielli, supra note 27 at 104.30 UN GA Declaration 1803 (XVII), Preamble, para. 4. 31 Ibid. operative para. 1.32 Barrera-Hernandez, supra note 28 at 45.33 Ibid.
12
II. Two ways to substantiate Aboriginal sovereignty over natural resources
With account to what has just been said, there are two ways in which aboriginal peoples can have
sovereignty over natural resources on their lands. Where resources belong to the owner of the
land, in accordance with the Anglosaxon system, aboriginal peoples can hold property in natural
resources as a consequence of their ownership of the land. If the state is seen as the sovereign
over sub-surface resources, however, as in the Roman system, the right of aboriginal peoples to
the resources on their lands has to be founded on different grounds, such as a right to self-
determination and autonomy.
1. Property Rights in Natural Resources
In a system where natural resources are deemed to belong to the owner of the land, they have to
belong to aboriginal peoples who own land as a simple matter of non-discrimination.34 However,
this has not always been that obvious, because states have not recognized Aboriginal ownership,
especially communal ownership, in the same way as private ownership. The Inter-American
Commission on Human Rights and the Inter-American Court of Human Rights have decided
some of those case, without however explicitly differentiating between those resources that are
vested in the owner and those that belong to the state.35
34 Anaya, James S., Indigenous Peoples in International Law, 2nd ed. (New York: Oxford University Press 2004) at 143.35 See infra, Section C.III.2a); see also Nieva, Eduardo, “Ponencia sobre las Industrias Extractivas en Territorios In-dígenas y la Legislación Internal en las Americas - Derecho de Consulta y Participación. Consentimiento previa, libre e informado” (2004) Inter-American Commission on Human Rights, General Hearing (4 March 2004 - Washington, D.C.) at 7-8.
13
2. Rights over Natural Resources as part of Self-Determination
A different substantiation of indigenous peoples' rights over natural resources stems from the
notion of self-determination and autonomy. The right to self-determination of peoples is
enshrined in the common Article 1 of the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights. Whether First Nations in
fact constitute a peoples in the meaning of this clause is highly debated and has been the subject
of much conflict in the drafting process of the UN Declaration on the Rights of Indigenous
Peoples.36
James Anaya puts forward two basic ideas of why indigenous groups have rights.37 The first is
because they are a people and therefore also a subject of sovereignty. They are an entity
comparable to states, but historic injustice has removed their sovereign rights from them. Today,
in order to redeem that injustice, First Nations are entitled to self-determination, autonomy and
sovereign rights.38
The second idea is based on a human rights approach. It claims that indigenous people are groups
of human beings with fundamental human rights concerns. The historic experience of conquest is
mainly used as a background in this approach to explain present day oppression and inequality. Its
primary focus, however, is concerned with the wellbeing of humans, to which it gives priority
36 For a detailed discussion of Aboriginal peoples' right to self-determination see Macklem, Patrick, “Indigenous Recognition in International Law: Theoretical Observations“ (forthcoming); Xanthaki, Alexandra, Indigenous Peo-ples and United Nations Standards (Cambridge: Cambridge University Press 2007) at 131 ff.; Xanthaki, Alexandra, “The Right to Self-Determination: Meaning and Scope”, in: Nazila Ghanea & Alexandra Xanthaki, eds., Minorities, Peoples and Self-Determination (Leiden: Martinus Nijhoff Publishers 2005), 15; Castellino, Joshua, “Conceptual Difficulties and the Right to Indigenous Self-Determination”, in: Nazila Ghanea & Alexandra Xanthaki, eds., Minori-ties, Peoples and Self-Determination (Leiden: Martinus Nijhoff Publishers 2005), 55; Cirkovic, Elena, “Self-Deter-mination and indigenous peoples in international law” (2006) 31 American Indian Law Review, 375. 37 Anaya, S. James, “Divergent Discourses About International Law, Indigenous Peoples, and Rights over Lands and Natural Resources: Towards a Realist Trend“ (2005) 16 Colorado Journal of International Environmental Law and Policy 237 [Anaya, “Towards a Realist Trend”]. 38 See ibid. at 241.
14
over the interests of sovereign entities.39 From this strain of thought, a moral duty evolves to grant
aboriginal groups certain exclusive rights in order to fulfill their special needs.
International Organizations tend to prefer the latter explanation, because their member states
refrain from recognizing another sovereign entity that is not a state.40 The human rights based
approach fits more neatly within an already developed and generally accepted framework of basic
rights and freedoms, which has the capacity even to incorporate differentiated rights and
privileges in a strife for factual equality and non-discrimination.
Anaya criticizes the very formalistic, positivist standpoint often taken by states as well as
international actors. He claims that “[f]or formalists, words in texts, settled doctrine, and first
principles tend to have preordained, fixed meaning that is discerned often in isolation from the
political and social dynamics and the changing value structures to which they are relevant.”41
Their argumentation thus goes that peoples cannot have sovereignty because the established rule
is that only states have it. Whether the underlying rule is normatively right or wrong, in
consideration of the historic injustice of conquest, does not matter.
However, the historic argument does have an important part in the discussion. While states refrain
from basing a right to self-determination only on the historic dispossession of aboriginal peoples
of their lands and their sovereign rights, they accept this fact as one reason for giving special
protection for aboriginal peoples rights in the present day. This argument plays into the human
rights idea and strengthens the moral duty to grant exclusive rights and a degree of autonomy to
aboriginal groups. The drafters of the UN Declaration were caught in exactly this dispute between
recognition of historic injustice and continuing rejection of indigenous communities as sovereign
39 See ibid.40 See ibid. at 241-242.41 Ibid. at 244.
15
actors.42 The Preamble pointedly expresses the General Assembly’s concern “that indigenous
peoples have suffered from historic injustices as a result of, inter alia, their colonization and
dispossession of their lands, territories and resources, thus preventing them from exercising, in
particular, their right to development in accordance with their own needs and interests”.43
Notably, the title and the text of the Declaration, in departure from the original appointment, use
the term “Indigenous peoples”. Article 3 enshrines their right to self-determination, while Article
4 declares that this entails the right to autonomy or self-government in matters relating to their
internal and local affairs. On the other hand, Article 46 para. 1 reinforces that neither the right to
self-determination nor any other provision of the Declaration authorizes any action which would
impair the territorial integrity or political unity of a sovereign state. In spite of this careful
limitation, the Declaration gives a powerful momentum to the indigenous cause for self-
determination.
Further areas of law play into the discussion and give addition strength to the argument for
Aboriginal sovereignty over natural resources. Those are, for example, environmental protection,
the right to subsistence and cultural preservation, and the issue of racial discrimination.44
III. The Development of International Legal Principles with regard to Aboriginal Consent
The existence of participatory rights of indigenous peoples, and the scope of these rights, have
been developed through a lively process. This includes some written treaties that have been
drafted throughout the years. However, the more important role in advancing aboriginal rights
42 To the discussions that took place around the inclusion of a reference to self-determination, see Huff, Andrew, “In-digenous Land Rights and the New Self-Determination” (2005) 16 Colorado Journal of International Environmental Law and Policy 295 at 316 ff.43 Preamble, para. 6.44 Getches, David H., “Indigenous Peoples' Rights to Water Under International Norms“ (2005) 16 Colorado Journal of International Environmental Law and Policy 259 at 262.
16
was played by international bodies. While treaties are slow to evolve and often portray ancient
conceptions of the law which have long been out-dated by new social realities and common
understanding, international organs have proved to be flexible in interpreting those provisions in
the light of modern developments.
1. International Instruments
Aboriginal peoples were mentioned for the first time in a multilateral treaty in the Inter-American
Charter of Social Guaranties of 1948.45 Its Article 39 provides that states take necessary measures
to protect indigenous peoples' lives and property, defending them from extermination, sheltering
them from oppression and exploitation.46
The first international instrument that was primarily dedicated to the protection of indigenous
populations' rights was ILO Convention No. 107 of 1957 on the Protection and Integration of
Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries.47 It followed
an approach of integration and assimilation that is rejected today, and placed little value on
indigenous distinct culture. It still pursues the idea of formal non-discrimination and thus
determines that members of the population concerned should receive the same treatment as other
members of the national population in relation to the ownership of underground wealth or to
preference rights in the development of such wealth (Article 4).
Convention No. 107 was revised in 1989 by Convention No. 169 concerning Indigenous and
45 International Conferences of American States, Second Supplement, 1942-1954, Washington, D.C.: Pan American Union, 1958, 262. 46 See Anaya, S. James & Williams, Robert A. Jr., “The Protection of Indigenous Peoples' Rights over Lands and Natural Resources Under the Inter-American Human Rights System” (2001) 14 Harvard Human Rights Journal 33 at 33.47 Available at: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C107.
17
Tribal Peoples in Independent Countries.48 The latter has only been ratified by 20 states,49 but
nevertheless has gained some significance in international law and has been referred to by
international bodies in cases where the respective state is not party to the Convention. Article 15
deals with the issue of natural resources. It explicitly differentiates between such natural resources
that belong to the owner of the land and such “cases in which the State retains the ownership of
mineral or sub-surface resources or rights to other resources pertaining to lands” (Article 15 para.
2). In the latter case, the Convention foresees a process of consultation, “with a view to
ascertaining whether and to what degree their interests would be prejudiced, before undertaking
or permitting any programmes for the exploration or exploitation of such resources pertaining to
their lands.”
Parallel to the drafting process of the UN Declaration, the Organization of American States
(OAS) undertook to draft an American Declaration on the Right of Indigenous Peoples. In 1989
the OAS General Assembly recommended that the Inter-American Commission on Human Rights
prepare such a declaration on indigenous peoples.50 The Commission drafted a proposal and
submitted it to the General Assembly in 1997,51 but it has not been passed until this date.52 The
American Declaration on Indigenous peoples expressly recognizes that in some countries the state
is the owner of sub-surface resources.53 It does not foresee consent in those cases, but only
48 Available at: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169.49 See ILO ratification chart for Convention No. 169, available at: http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169.50 OAS General Assembly Res. 1022 (XIX-0/89), OAS General Assembly Proceedings, 19th Regular Session, Vol. 1 OEA/Ser.P/XIX.0.2, Washington, D.C. 1989. 51 OAS, Inter-American Commission on Human Rights, Annual Report 1996, OEA/Ser.L/V/II.95, doc 7, rev. Mar. 1997; for more details on the proceedings see Kreimer, Osvaldo, “The Future Inter-American Declaration on the Rights of Indigenous Peoples: A Challenge for the Americas”, in: Cynthia Price Cohen, ed., Human Rights of Indige-nous Peoples (Ardsley, N.Y.: Transnational Publishers 1998) 63 at 65 ff. 52 For an updated account of the process of adoption of the declaration see OAS, Permanent Council, Committee on Judicial and Political Affairs, Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples, online at: http://www.oas.org/consejo/cajp/Indigenous.asp. 53 UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Preven-tion of Discrimination and Protection of Indigenous Peoples, Final Report of Special Rapporteur Erica-Irene A. Daes on Indigenous peoples' permanent sovereignty over natural resources, Fifty-sixth session, UN Doc.
18
participation and compensation of the affected people.54
2. Decisions and Recommendations of International Bodies
Where states were rather reluctant to recognize indigenous rights to land and natural resources for
the longest time, international bodies, such as the Courts and Committees of international human
rights institutions, have proved much more willing to incorporate and give effect to such rights.
a) Inter-American Commission on Human Rights and Inter-American Court of Human
Rights
The Inter-American Commission on Human Rights and the Inter-American Court of Human
Rights are the judicial organs of the OAS. The human rights system is a fundamental component
of the area of work of this organization. Its basic pillars are the 1948 American Declaration on the
Rights and Duties of Man55, and the American Convention on Human Rights, which expanded
and updated the Declaration in 1969.56 Additionally, there are a number of protocols
complementing the Convention, such as the 1988 Protocol on Economic, Social and Cultural
Rights,57 as well as other Conventions dealing with specific human rights issues, such as the Inter-
E/CN.4/Sub.2/2004/30/Add.1 of 12 July 2004 at 11. 54 The relevant provisions of Article 18 read:
4. The rights of indigenous peoples to existing natural resources on their lands must be especially protected. These rights include the right to the use management and conservation of such resources.
5. In the event that ownership of the minerals or resources of the subsoil pertains to the State so that the State has rights over other resources on the lands the governments must establish or maintain procedures for the par-ticipation of the peoples concerned in determining whether the interests of these people would be adversely affected and to what extent before undertaking or authorizing any program for tapping of exploiting existing resources on their lands. The peoples concerned shall participate in the benefits of such activities, and shall receive compensation in ac-cordance with international law, for any damages which they may sustain as a result of such activities. 55 American Declaration on the Rights and Duties of Man, OEA, AG/RES 1591 (XXVIII-O/98); OEA/Ser.L.V./II 82 doc.6 rev.1 at 17 (1992).56 American Convention on Human Rights, OAS Treaty Series No. 36, 1144 U.N.T.S. 123.57 OAS, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and
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American Convention to Prevent and Punish Torture of 1985.58
The Inter-American Commission was created in 1959, first as an autonomous entity with
uncertain legal status.59 In 1967 it was made an organ of the OAS.60 Under the Charter, the
Commission has the relatively weak function of promoting “the observance and protection of
human rights and to serve as a consultative organ of the Organization in these matters.”61
However, it is also an organ of the American Convention on Human Rights. Under its Article 41,
the Commission is called upon to promote respect for and defence of human rights, to serve as a
consultative organ, to make recommendations to the governments of member states, and to
prepare studies and reports. The Commission thus does not have the power to issue legally
binding judgments. However, it may take up individual petitions, conduct an investigation into
the case and make recommendations to the respective government, or if it is necessary may refer
the case to the Inter-American Court of Human Rights.62
The Court is the principal judicial organ of the Inter-American system. It is a creation of the
Convention on Human Rights and serves the role of interpreting and applying the Convention.63 It
exercises two forms of jurisdictions: adjudicatory and advisory. With regard to the former, it has
the power of issuing binding judgments if the state party in question has previously declared that
it will recognize such contentious jurisdiction.64 To this date, 22 of the 34 member states have
Cultural Rights (Protocol of San Salvador), 17 November 1988, OAS Treaty Ser. 69, Treaty A-52.58 OAS, Inter-American Convention to Prevent and Punish Torture, 9 December 1985, OAS Treaty Ser. 67, Treaty A-51.59 See Davidson, Scott, The Inter-American Human Rights System (Aldershot, GB: Dartmouth 1997), at. 7.60 OAS, Protocol of Buenos Aires of Amendment to the Charter of the OAS, 27 February 1967, OAS Treaty Ser. No. 1-A, Treaty B-31. 61 Ibid., Article 112 (now Article 11 of the OAS Charter).62 American Convention on Human Rights, supra note, Articles 44, 48-51, 61 para. 1; see Davidson, supra note 59 at 155 ff.63 Ibid., Articles 33, 61-69; Statute of the Inter-American Court of Human Rights, Adopted by the General Assembly of the OAS at its Ninth Regular Session in October 1979, Res. 448, Article 1. 64 American Convention on Human Rights, ibid., Articles 61 and 62.
20
deposited a declaration in this regard.65 According to Article 61 of the Convention on Human
Rights, only State parties or the Commission have the right to submit a case to the Court.
Individuals thus do not have access directly to the Court, but first have to lodge a complaint with
the Commission.
The American Convention on Human Rights does not include a specific right to natural resources.
The provision which the Commission and the Court have used as a hook for their jurisprudence
on land rights and resources is Article 21, dealing with the right to property, which reads:
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.
(...)
The Court and Commission have interpreted this article very flexibly in order to give sufficient
consideration to aboriginal peoples' interests.66 They have also drawn on other provisions of the
Convention to give those claims additional force.
The first landmark case decided by the Commission was the Yanomami Indigenous Community
petition against the Government of Brazil of 1980.67 The complaint was directed against the
government-sponsored construction of roads and farming, as well as the granting of mineral
mining licenses on land where the official demarcation of boundaries of indigenous land was
65 OAS, American Convention on Human Rights, Chart of Signatures and Current Status of Ratifications, available at: http://www.cidh.oas.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm (accessed 22 July 2009).66 Barrera-Hernandez, supra note 28 at 49.67 Inter-American Commission on Human Rights, Case of Yanomami Indigenous Community v. Brazil, Res. 12/85, Case 7615, Brazil, March 5, 1985, Recommendation # 11, found in: “The Situation of the Human Rights of Indige-nous Peoples”, OEA/Ser.L/V/II.108, doc. 62, 125-137 (20 October 2000).
21
pending at that time.68 This had “led to a massive presence of foreigners in the said territory and
had had serious effects on the community's well-being, including the alteration of their traditional
organization, emergence of female prostitution, epidemics and diseases, forced displacement to
lands unsuitable to their ways of life, and death of hundreds of Yanomamis.”69 The Commission
found Brazil to be responsible for failing to take timely and effective measures to protect the
Yanomamis' land and thereby violated their right to life, liberty and personal security, the right to
residence and movement, and the right to preservation of health and well being.70 The
Commission further considered that current international law acknowledges the right of
indigenous groups to special protection for the use of their language, their religion and, in
general, all elements essential to the preservation of their cultural identity.71 It recommends that
the state proceed with the demarcation of indigenous lands and that it take preventive and
remedial sanitary measures aimed at protecting the life and health of the Yanomami. It further
points out the importance to ensure that education, health protection and social integration
programs aimed at the Yanomami are carried out in consultation with the indigenous
community.72
The first time the Inter-American Court of Human Rights denounced a decision on indigenous
land rights was in the 2001 case of Mayanga Community of Awas Tingni v. Nicaragua.73 This was
also the first landmark case which dealt specifically with the state's power over natural
resources.74 The Nicaraguan government had granted a concession to a Korean company for large-68 Ibid., Facts, at para. 2. 69 International Network for Economic, Social & Cultural Rights, Case summary, Comunidad Yanomami, Caso No 7615, Resolución No 12/85, at: http://www.escr-net.org/caselaw/caselaw_show.htm?doc_id=412519. 70 Inter-American Commission on Human Rights, Case of Yanomami Indigenous Community, supra note 67, Deci-sion, at para. 1. 71 Ibid., Considerations, at para. 7. 72 Ibid., Decision, at para. 3.73 Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, Am. Ct. H.R. (Ser C), No. 79.74 Barrera-Hernandez, supra note 28 at 54.
22
scale timber logging and the construction of roads necessary for transportation on indigenous
lands. The group of Awas Tingni complained that the land was erroneously considered to be state
owned even though it was their ancestral land. The concession was granted without regard to their
previous efforts to obtain legal recognition of the lands, and contrary to domestic legal provisions
designed to protect the rights of indigenous communities.75
The case was first brought before the Inter-American Commission, which dealt with it in 1998.
The Commission found that the state had violated the indigenous community's property rights, in
conjunction with other human rights, by refusing to grant them legal recognition of their land and
by granting the concession for logging. In addition, it asserted that Nicaragua had violated the
right to judicial protection as enshrined in Article 25 of the Convention.76 Therefore, the
Commission decided to file a complaint against Nicaragua before the Inter-American Court of
Human Rights.77
In its concluding report on the case, the Commission found that:
“The state of Nicaragua is actively responsible for violations of the right to property, embodied in Article 21 of the Convention, by granting a concession to the company SOLCARSA to carry out road construction work and logging exploitation on the Awas Tingni lands, without the consent of the Awas Tingni Community.”78
In the view of the Commission, thus, not only consultation with the aboriginal group is required,
but it demands that the state obtain their consent prior to undertaking or permitting any projects
75 Alvarado, Leonardo J., “Prospects and Challenges in the Implementation of Indigenous peoples' Human Rights in International Law: Lessons from the Case of Awas Tingni v. Nicaragua“ (2007) 24 Arizona Journal of International and Comparative Law 609 at 610-611.76 Inter-American Commission Report No. 27/98 of 3 March 1998.77 Complaint of the Inter-American Commission of Human Rights against the Republic of Nicaragua in the Case of the Mayagna (Sumo) Indigenous Community of Awas Tingni, reprinted in: Anaya, S. James & Grossman, Claudio, “The Case of Awas Tingni v. Nicaragua: A Step in the International Law of Indigenous Peoples” (2002) 19 Arizona Journal of International and Comparative Law 1 at 17 ff. 78 Inter-American Commission Report No. 27/98, supra note.
23
aimed at the exploitation of natural resources on indigenous lands, and that it do not proceed
without such consent.
The Court was convinced by the submissions of the Awas Tingni community and the Commission
and decided that Nicaragua had violated the law of land ownership, as well as the right to judicial
protection.79 What commentators have distinguished as “the most significant and far-reaching part
of the decision”80 is the interpretation the Court has given to Article 21 of the American
Declaration on Human Rights. It understands this provision as going beyond individual right of
ownership and encompassing communal property of indigenous peoples in accordance with their
customary land tenure.81 The rights articulated in international human rights instruments, the
Court stresses, “have an autonomous meaning, for which reason they cannot be made equivalent
to the meaning given to them in domestic law. Furthermore, such human rights treaties are live
instruments whose interpretation must adapt to the evolution of the times and, specifically, to
current living conditions.”82 Therefore, the Court is not confined in its decision to the scope that is
given to the right to property in a domestic context. Instead, it looked into recent developments in
international law with respect to the rights of indigenous peoples to property in land, including
the jurisprudence of the European Court of Human Rights with regard to the protection of
indigenous communal property in the European Convention on Human Rights, and the
approaches of other international institutions.83
Besides the acceptance of a concept of communal property, the Court also recognized the validity
79 Inter-American Court of Human Rights, Case of Awas Tingni, supra note 73.80 Anaya/ Grossman, supra note 77 at 12; see also Alvarado, supra note 75 at 612; Amiott, Jennifer A., “Environ-ment, Equality, and Indigenous Peoples' Land Rights in the Inter-American Human Rights System: Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua“ (2002) 32 Environmental Law 873 at 900 ff.; Anaya, “To-wards a Realist Trend”, supra note 37 at 253.81 Inter-American Court of Human Rights, Case of Awas Tingni, supra note 73 at paras. 146, 148.82 Ibid., para.146.83 See Anaya, “Toward a Realist Trend”, supra note 37 at 253.
24
of indigenous customary land tenure patterns. Hence, “possession of the land should suffice for
indigenous communities lacking real title to property of land to obtain official recognition of that
property, and for consequent registration”.84 Consequently, property rights of the Awas Tingni
community derive from its traditional occupancy and use of the land and do not depend on
official registration or recognition by the state.85 The Court further recognizes that “for indigenous
communities, relations to the land are not merely a question of possession and production, but a
material and spiritual element which they must fully enjoy, as well as a means to preserve their
cultural heritage and pass it on to future generations.”86 In its final orders, the Inter-American
Court demanded that Nicaragua demarcate and title the Awas Tingni land with full participation
of the community, and taking into account its customary law and values.87
The most significant feature of this decision is that the Court did not stop at the formal wording
of Article 21, but looked at the core values represented by the right to property, and took into
account modern developments in international law.88 It thereby recognizes that international law,
especially human rights law, is not bound by what a state is willing to implement in its national
legislation and practice, but may move forward autonomously in accordance with modern values
and believes.
The proceedings, even before the decision was surrendered, already had the side effect of creating
large political pressure on the Nicaraguan authorities. For example, the World Bank heard about
the struggle and conditioned its aid package to the country on the creation of legislature to
demarcate indigenous lands.89
84 Inter-American Court of Human Rights, Case of Awas Tingni, supra note 73 at para. 151.85 Alvarado, supra note 75 at 612.86 Inter-American Court of Human Rights, Case of Awas Tingni, supra note 73 at para. 149.87 Ibid., para. 164.88 Anaya, “Towards a Realist Trend”, supra note 37 at 253.89 Amiott, supra note 80 at 899; Anaya/ Williams, supra note 46 at 38.
25
A further remarkable part of the decision is the separate opinion of Judge García Ramirez, in
which he makes reference to ILO Convention 169, even though Nicaragua was not a party to the
Convention.90 This demonstrates a willingness to take such international instruments into account,
independently of the individual states' ratification, as sources of customary international law.91 He
also makes reference to the UN and OAS Draft Declarations, thus demonstrating a willingness to
take those drafts into account as evidence of existing or emerging customary international law.92
Another important decision of the Inter-American Commission in the Case of Maya Indigenous
Communities of Toledo District v. Belize revolves around the concession for logging and oil
extraction granted to companies on Maya traditional land.93 The Commission took immediate
action in this case and accepted a request for precautionary measures by the indigenous
community, calling upon Belize to suspend all permits, licenses, and concessions until it has
investigated the substantive claims raised in the case.94
In the decision on the merits, the Commission, in line with the Awas Tingni judgment, states that
property rights protected under the Inter-American system are not limited to those property
interests that are already recognized under domestic law, but rather the right to property has an
autonomous meaning in international human rights law.95 With regard to the logging and oil
extraction which are the central element of the complaint, the Commission goes even further in
its interpretation of the property provision in favor of indigenous rights. In a detailed statement it
90 Inter-American Court of Human Rights, Case of Awas Tingni, supra note 73, Concurring Opinion of Judge Sergia García Ramírez in the Judgment on the Merits and Reparations, reprinted in Anaya/ Grossman, supra note 77 at 449, at para. 7.91 Anaya, Indigenous peoples in international law, supra note 34 at 146.92 Concurring Opinion of Judge Sergia García Ramírez, supra note 90 at para. 8.93 Inter-American Court of Human Rights, Case of Maya Indigenous Communities of the Toledo District v. Belize, Case no. 12.053, Report No. 40/04, OEA/Ser.L/V/II.122 doc rev 1, available at: www.cidh.oas.org/annualrep/2004eng/Belize.12053eng.htm.94 See Anaya/ Williams, supra note 46 at 39.95 Inter-American Court of Human Rights, Case of Maya Indigenous Communities of the Toledo District, supra note 93 at para. 131; see also Alvarado supra note 75 at 614.
26
lays out its view on the states obligation to undergo a process of consultation:
“The Commission also observes in this connection that one of the central elements to the protection of indigenous property rights is the requirement that states undertake effective and fully informed consultations with indigenous communities regarding acts or decisions that may affect their traditional territories. As the Commission has previously noted, Articles XVIII and XXIII of the American Declaration specially oblige a member state to ensure that any determination of the extent to which indigenous claimants maintain interests in the lands to which they have traditionally held title and have occupied and used is based upon a process of fully informed consent on the part of the indigenous community as a whole. This requires, at a minimum, that all of the members of the community are fully and accurately informed of the nature and consequences of the process and provided with an effective opportunity to participate individually or as collectives. In the Commission’s view, these requirements are equally applicable to decisions by the State that will have an impact upon indigenous lands and their communities, such as the granting of concessions to exploit the natural resources of indigenous territories.”96
In the case of Mary and Carrie Dann v. United States (2002),97 also called the Western Shoshone
case, the Commission explicitly relies on new developments and trends in the international legal
system regarding the rights of indigenous peoples.98 The occurrences behind the complaint were
the introduction of a permit system imposed by the United States for grazing cattle on lands
which to large parts was traditional Western Shoshone territory. The Dann sisters refused to
comply with the permit requirement and were thus faced with forcible removal and substantive
fines. The US government claimed that the Western Shoshone title to the land had been
extinguished through administrative and judicial decisions and the territory now constituted
public property.99
96 Inter-American Court of Human Rights, Case of Maya Indigenous Communities of the Toledo District, ibid. at para. 142.97 Inter-American Commission on Human Rights, Case of Mary and Carrie Dann v. United States, Dec. 27, 2002, OAS Report No. 75/02, CASE 11.140, OEA/Ser.L/V/II.117, doc.1 rev.1 (2003), available at: www.cidh.org/annual-rep/2002eng/USA.11140b.htm.98 Anaya, “Towards a Realist Trend”, supra note 34 at 254.99 See Anaya, S. James, “Indigenous Peoples' Participatory Rights in Relation to Decisions about Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples have in Lands and Resources” (2005)
27
The Commission specifically refers to Article 18 of the American Draft Declaration on the Rights
of Indigenous Peoples, which provides for the protection of traditional forms of ownership and
cultural survival and rights to land, territories and resources. Even though the declaration is only
in its drafting stage and has not been approved by the OAS General Assembly, the Commission
takes it into account as a source of international law. “[T]he Commission considers that the basic
principles reflected in many of the provisions of the Declaration, including aspects of Article
XVIII, reflect general international legal principles developing out of and applicable inside and
outside of the inter-American system and to this extent are properly considered in interpreting and
applying the provisions of the American Declaration in the context of indigenous peoples.”100
It furthermore makes an advanced statement in favor of extensive rights of indigenous peoples
over their lands and natural resources:
“Of particular relevance to the present case, the Commission considers that general international legal principles applicable in the context of indigenous human rights to include:the right of indigenous peoples to legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property; the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied; andwhere property and user rights of indigenous peoples arise from rights existing prior to the creation of a state, recognition by that state of the permanent and inalienable title of indigenous peoples relative thereto and to have such title changed only by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property.(...)[T]his approach includes the taking of special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources and their right not to be deprived of this interest except with fully informed consent.”101
22 Arizona Journal of International and Comparative Law 7 at 14-15. 100 Inter-American Commission on Human Rights, Case of Mary and Carrie Dann, supra note 97 at para. 129.101 Ibid. at para. 130 f.
28
Consequently, it decided that the extinction of the Western Shoshones' land rights as alleged by
the US was defective, lacking the requisite of fully informed consent by the indigenous people,
and violated their right to protection of property and of due process.102
Renowned scholars, such as James Anaya, welcome this decision as a significant step towards a
system of protection of indigenous rights, in which “the commission further signaled the
development of a sui generis regime of international norms and jurisprudence concerning
indigenous peoples”.103 He points towards “the benchmark represented by ILO Convention No.
169 in that development, even in regard to states, like the United States, that are not parties to the
convention.”104 Lila Barrera Hernandez asserts that the Commission’s reference to the Draft
Declaration on Indigenous Peoples “may open the door to increasing intervention of the System's
organs in resource allocation decisions, particularly if the disputes before them revolve around
issues of environmental law, which is inextricably connected to resource development and the
protection of human life and health.”105
The Inter-American Court continued to develop its jurisprudence on indigenous peoples' property
rights in the cases of Moiwana Village v. Suriname,106 which concerns reparations for the
displacement of an indigenous community by government forces, and Yakye Axa Indigenous
Community v. Paraguay,107 dealing with the right to restitution of an indigenous community's
ancestral lands. Notably, in the latter case the Court for the first time expressly recognized that
communal property of indigenous communities relates to their culture, traditions and expressions,
102 Ibid, at para. 172. 103 S. James Anaya, Indigenous peoples in international law, supra note 34 at 147.104 Ibid.105 Barrera-Hernandez, supra note 28 at 52.106 Inter-American Court of Human Rights, Case of Moiwana Village v. Suriname, Series C, No. 124 (June 15, 2005), available at: www.corteidh.or.cr/docs/casos/articulos/seriec_124_ing.pdf.107 Inter-American Court of Human Rights, Case of Yakye Axa Indigenous Community v. Paraguay, Series C, No. 125 (June 15, 2005), available at: www.corteidh.or.cr/docs/casos/articulos/seriec_125_ing.pdf.
29
customs, rituals, values, art, and relationship with nature.108
The Commission also pronounced its opinion with regard to indigenous land right in its regular
country-specific human rights reports. For example, in the 1997 report on Ecuador, it deals
specifically with the exploitation of natural resources.109 It states that through government-
sponsored activities in the exploitation of hydrocarbon and timber, as well as agricultural
production, Ecuador encroached upon and interfered with indigenous peoples' use of the land and
threatened their cultural and physical survival and integrity. In its final recommendations, the
Commission requires that the state take adequate protective measures to guarantee the cultural
survival in connection with resource development, and grant meaningful participation to the
indigenous population in the decision making processes.
It has to be noted that not all of the decisions of the Commission are made public, in fact only a
small faction thereof.110 It is therefore possible that many more cases with regard to natural
resources have been decided. The cases described above, however, are sufficient to give an
insight into the direction the jurisprudence and recommendations of the Inter-American organs
are taking. They paint a vivid picture of the emergence of a new body of international law on
indigenous rights. Instruments such as the ILO Convention No. 169 constitute the body of this
new sui generis system, which is built upon by modern developments laid down in the UN
Declaration and the American Draft Declaration on Indigenous Peoples. Especially with regard to
the right to land and natural resources, the Inter-American Court and Commission depart from
restrictive national laws and recognize the autonomous and flexible meaning of international
108 Ibid. at para. 45 note 8; see Washington College of Law at American University, “Updates from the Regional Hu-man Rights Systems” (2005) online: 13 Human Rights Brief, 25 at 28, available at: www.wcl.american.edu/hrbrief/13/humanrights_systems.pdf?rd=1.109 Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96 Doc. 10 rev. 1, 24 April 1997, available at: www.cidh.oas.org/countryrep/ecuador-eng/chaper-9.htm.110 Barrera-Hernandez, supra note 28 at 50.
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human rights norms.
b) Reports of Human Rights Bodies
Other international human rights bodies have also pronounced themselves on indigenous peoples'
rights in general and on land and resources in particular. Foremost, the Committee of the
International Convention against all Forms of Racial Discrimination (CERD) has repeatedly
emphasized the duty of states to obtain the consent of aboriginal groups before taking decisions
that affect them. In 1997 it has issued a General Recommendation which is designed specifically
towards the protection of the right of indigenous peoples.111 It states in Article 4(d):
“[The Committee calls in particular upon State parties to E]nsure 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”.
The necessity of protecting the rights of aboriginal groups was also emphasized in a number of
country reports. However, the distinction between mere consultation and a requirements to obtain
consent is not always consistently drawn by CERD. For example, in its Concluding Observations
on Suriname 2004, the Committee recommends that Suriname take urgent action to identify the
lands which indigenous peoples have traditionally occupied and used, and to consult with
indigenous peoples.112 It further requires that Suriname's constitutional provision which reserves
rights over natural resources to the state must be exercised consistent with the rights of
111 UN Committee of the International Convention against all Forms of Racial Discrimination, General Recommen-dation XXIII on Indigenous Peoples, UN Doc. CERD/C/365, in A/52/18, Annex V (1997) at para. 3.112 UN Committee of the International Convention against all Forms of Racial Discrimination, Concluding Observa-tions of the Committee on the Elimination of Racial Discrimination: Suriname, CERD/C/64/CO/9, 28 April 2004 at paras. 12-13.
31
indigenous peoples.113 In its Concluding Observations Nigeria 2005, the Committee expresses
concern about a lack of meaningful consultation with ethnic groups in relation to large-scale
exploitation of natural resources with adverse effects on the environment.114 While only referring
to consultations in those opinions, in the 2003 Concluding Observations on Ecuador the
Committee explicitly requires the state to obtain prior and informed consent:
“As to the exploitation of the subsoil resources of the traditional lands of indigenous communities, the Committee observes 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.”115
As well, in its 2005 Concluding Observations on Australia, the Committee emphasizes the need
to take decisions directly relating to the rights and interests of indigenous peoples with their
informed consent.116 Specifically with regard to land rights, it recommends that the state should
make all efforts to seek the informed consent of indigenous peoples before adopting any decision
effecting them.117
The Committee on Economic, Social and Cultural Rights, which was created by the UN
Economic and Social Council (ECOSOC) to monitor the implementation of the Covenant on
Economic, Social and Cultural Rights, takes a similar stand. Even more explicitly then the 113 Ibid. at para. 11.114 UN Committee of the International Convention against all Forms of Racial Discrimination, Concluding Observa-tions of the Committee on the Elimination of Racial Discrimination: Nigeria, CERD/C/NGA/CO/18, 1 November 2005, at para. 19.115 UN Committee of the International Convention against all Forms of Racial Discrimination, Concluding Observa-tions of the Committee on the Elimination of Racial Discrimination: Ecuador, CERD/C/62/CO/2, 21 March 2003, at para 16.116 UN Committee of the International Convention against all Forms of Racial Discrimination, Concluding Observa-tions of the Committee on the Elimination of Racial Discrimination: Australia, CERD/C/AUS/CO/14, 14 April 2005, at para. 11.117 Ibid. at para. 16.
32
Committee on Racial Discrimination, the Committee on Economic, Social and Cultural Rights
assumes a duty of the state to seek the aboriginal group's consent in matters affecting them. Its
2004 Concluding Observations on Colombia ascertain:
“The Committee notes with regret that the traditional lands of indigenous peoples have been reduced or occupied, without their consent, by timber, mining and oil companies, at the expense of the exercise of their culture and the equilibrium of the ecosystem... The Committee urges the State party to ensure that indigenous peoples participate in decisions affecting their lives. The Committee particularly urges the State party 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, in accordance with ILO Convention No. 169 (1989) concerning indigenous and tribal peoples in independent countries.”
Shortly afterwards, in its 2004 Concluding Observations on Ecuador, the committee formulates
an even stricter duty of states to obtain consent of aboriginal communities before undergoing
resource extraction on their lands.
“The Committee is concerned that, although the Constitution recognizes the rights of indigenous communities to hold property communally and to be consulted before natural resources are exploited in community territories, these rights have regretfully not been fully implemented in practice. The Committee is deeply concerned that natural extracting concessions have been granted to international companies without the full consent of the concerned communities. The Committee is also concerned about the negative health and environmental impacts of natural resource extracting companies’ activities at the expense of the exercise of land and culture rights of the affected indigenous communities and the equilibrium of the ecosystem.”118
The UN Sub-Commission on the Promotion and Protection of Human Rights undertook a specific
inquiry into the topic of indigenous peoples' permanent sovereignty over natural resources in
2004. The final report of the Special Rapporteur Erica-Irene A. Daes examines practices of
118 Para 12.
33
international actors and states and comes to the conclusion that all states and international actors
must recognize the right to self-determination of indigenous peoples with regard to their lands,
territories and resources and respect their rights to control and protect these lands.119
c) Policies of International Bodies
The practice and official policies of international treaty bodies towards indigenous peoples have
changed over time in a similar manner as indigenous rights were recognized and developed in
national and international law. Traditionally, they typically ignored the concerns of indigenous
peoples when undertaking consultations on such issues as development projects or environmental
issues. Where indigenous interests were taken into account in the decision making process, it was
not the affected people themselves that were consulted, but the bodies relied on external experts
to decide on what would bring the most benefit to everybody.
However, this attitude has clearly began to change in recent years. There is an increasing tendency
to not only include indigenous interests in the decisions on the undertaking of development
processes, but specifically to give the communities effected by the decision a voice and let them
participate in processes at an international level.
One interesting example of this development is the UN Convention on Biological Diversity.120
Although it is a rather new instrument, adopted in 1992, it still follows a state-centered approach
to natural resources and the question of indigenous participation. The preamble reaffirms “that
States have sovereign rights over their biological resources, (... and) that States are responsible for
conserving their biological diversity and for using their biological resources in a sustainable
119 UN Sub-Commission on the Promotion and Protection of Human Rights, supra note 53.120 UN Convention on Biological Diversity, June 5, 1992, 31 I.L.M. (1992), 818, available at: http://www.cbd.int/convention/convention.shtml.
34
manner”.
While the preamble also recognizes “the close and traditional dependence of many indigenous
and local communities embodying traditional lifestyles on biological resources, and the
desirability of sharing equitably benefits arising from the use of traditional knowledge,
innovations and practices relevant to the conservation of biological diversity and the sustainable
use of its components”, it fails to recognize a corresponding right of indigenous peoples.
Moreover, it also fails to provide for any form of direct participation of aboriginals at the level of
the treaty body, but instead sees their role solely in state-intern communication and negotiations
with the relevant authorities. Article 8 stipulates that:
Each contracting party shall, as far as possible and as appropriate:[...](j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.
In spite of this very limited provision for indigenous consultation, in practice a very different
form of participation at the international level has developed. A Conference of Parties, which is
established in Article 23 of the Convention, resumes every two years as a governing body for the
Convention. While there was no aboriginal participation envisioned, communities who felt
excluded have taken the initiative to convene a Summit of Indigenous Representatives to meet at
the same time as the Conference of Parties. This Indigenous Summit has been meeting regularly
as an alternative Convention parliament and has passed its own resolutions, which then would be
35
transferred as proposals to the Conference of Parties.121 Over time it has become an institution
that is, while not officially enshrined in the text of the Convention, somewhat accepted as an actor
of influence. Indigenous peoples see their taking part in those summits as an expression of their
existing, if not yet recognized, right to participation in decision making processes in areas that
effect their lives at the international level.122 At its fourth meeting in 1998, the Conference of
Parties established a special working group on Article 8(j) of the Convention. Additionally, at its
fifth meeting in 2000 the conference of Parties adopted a programme of work to enhance the role
and involvement of indigenous and local communities in the achievement of the objectives of the
Convention.123 This decision explicitly recognizes the role that the International Indigenous
Forum on Biodiversity has played, and refers to a number of declarations by indigenous
communities relating to conservation and sustainable use of biodiversity. For the future, it
stipulates that “[t]he Working Group [on Article 8(j)] should further explore ways for increased
participation by indigenous and local communities in the thematic programmes of work of the
Convention on Biological Diversity.”124
Paras. 11 and 12 furthermore explicitly call for indigenous participation in the international arena:
“The Conference of Parties (...)11. Invites Parties and Governments to support the participation of the International Indigenous Forum in Biodiversity, as well as relevant organizations representing indigenous and local communities, in advising the Conference of the Parties on the implementation of Article 8(j) and related provisions;12. Urges Parties and Governments and, as appropriate, international organizations, and organizations representing indigenous and local communities, to facilitate the full and effective participation of indigenous and local communities in the implementation of the Convention, and to this end:
121 See Clavero, supra note 24 at 47-48.122 Ibid.123 UN Convention on Biological Diversity, Conference of Parties Decision V/16 on Article 8(j) and related provi-sions, available at: http://www.cbd.int/decision/cop/?id=7158.124 Ibid., operative para. 9.
36
(d) Strengthen and build capacity for communication among indigenous and local communities, between indigenous and local communities and Governments, at local, national, regional and international levels, including with the Secretariat of the Convention on Biological Diversity, with direct participation and responsibility of indigenous and local communities through their appropriate focal points”.
The United Nations Development Programme (UNDP) has for some time been at the forefront of
the struggle for indigenous rights and participation. In 2001 it adopted a “Policy on Engagement”
which has the explicit underlying aim of building a sustainable partnership with indigenous
peoples.125 UNDP believes that “[e]nsuring the engagement of indigenous peoples and their
organizations is critical in preventing and resolving conflict, enhancing democratic governance,
reducing poverty and sustainably managing the environment.”126 The Policy was drafted in
consultation with representatives of indigenous organizations worldwide.127 It emphasizes that
development has often been imposed upon indigenous communities from outside, thereby often
damaging their ancestral lands, waters and natural resources. As a consequence, UNDP fosters the
full participation of indigenous peoples in all development processes.128 Para. 28 of the Policy
states that:
“Consistent with United Nations conventions such as ILO Convention 169, UNDP promotes and supports the right of indigenous peoples to free, prior informed consent with regard to development planning and programming that may affect them.”
The subsequent paragraphs further emphasize the importance of their traditional lands for
indigenous peoples and promotes the recognition of right to these lands, territories and resources,
125 UN Development Programme, UNDP and Indigenous Peoples: a Practice Note on Engagement (2001), at para. 3, available at: http://www.undp.org/partners/cso/indigenous.shtml.126 Ibid.127 Ibid. at para. 4.128 Ibid. at para. 27.
37
as well as an aboriginal right to self-determined development and control of these ancestral
lands.129 A number of UNDP Projects, such as the Regional Initiative on Indigenous Peoples'
Rights and Development, have an explicit focus on facilitating cooperation between governments
and indigenous peoples' organizations in order to integrate indigenous peoples' rights into
national policies and strategies.130
In 1998, the Council of Ministers of European Union adopted a Resolution entitled Indigenous
Peoples within the Framework of the Development Cooperation of the Community and Member
States. In this document, the Council recognizes “that indigenous peoples have the right to choose
their own development paths, which includes the right to object to projects, in particular in their
traditional areas.”131 This was reaffirmed by the European Commission, which had been asked to
undertake a review of progress of working with indigenous peoples.132
The World Commission on Dams (WCD), which is an association of government representatives,
international financial institutions, the private sector, civil society organizations and affected
people, founded in 1997,133 carried out a global review of the effects of large dam buildings on
development from 1998 to 2000. One of its findings was that such dams have disproportionately
impacted indigenous peoples, underlying which was a general institutional lack of consideration
for indigenous peoples, their social exclusion in official policies and institutions, denial of their
129 Ibid. at paras. 29-30.130 See UN Development Programme, Regional Initiative on Indigenous Peoples' Rights and Development (RIPP), launched in September 2004, available at: http://regionalcentrebangkok.undp.or.th/practices/governance/ripp/; see also the summary of other projects at http://www.undp.org/partners/cso/indigenous.shtml. 131 European Union Council of Ministers, Resolution 13461/98 on “Indigenous Peoples within the Framework of the Development Cooperation of the Community and Member States”, 30 November 1998, para. 5, available at: http://www.fern.org/pubs/eudocs/indigres.htm.132 Commission of the European Union, Report from the Commission to the Council – Review of Progress of Wor-king with Indigenous Peoples, COM/2002/0291 of 11 June 2002, available at: http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2002&nu_doc=291.133 See World Commission on Dams, Outline of the WCD, Introduction, available at: http://www.dams.org/commissi-on/intro.htm.
38
right to self-determination, and discrimination against them in society.134 The WCD released a
report in 2000 in which it recommends a new framework for decision making, which is based on
the principle of free, prior and informed consent.135 As part of this principle, the report
emphasized the right of access to information, legal and other support to enable an informed
decision-making process, negotiations in an open and transparent process and the participation of
formal and informal representative bodies of aboriginal groups.136
A shift can be seen also in the World Bank's approach to indigenous participation with regard to
the financing of development programs which effect their lands and lives. Earlier policies, such as
the 1982 Operational Policy Statement on Tribal Peoples in Bank-financed Projects (OMS 2.34),
was rather concerned with the protection of small, isolated groups from the negative impacts of
development projects than with providing a framework for effective consultation with indigenous
peoples as such.137 Even though a study conducted shortly before OMS 2.34 was drafted
concluded that the World Bank should avoid all unnecessary or avoidable encroachment onto
territories used or occupied by tribal groups, and should not undertake any projects not agreed to
by those peoples,138 the policy statement failed to implement many of its proposals.139
OMS 2.34 was elaborated exclusively by members of the Bank without any participation by
indigenous peoples, and was based on a notion of integration which was at that time already seen
134 Cariño, Joji, “Indigenous Peoples' Rights to Free, Prior, Informed Consent: Reflections on Concepts and Practice” (2005) 22 Arizona Journal for International and Comparative Law 19 at 21.135 World Commission on Dams, Dams and Development: A New Framework for Decision-Making, 2000, at 112, available at: http://www.dams.org//docs/report/wcdreport.pdf.136 Ibid. at 215.137 Errico, Stefania, “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” (2006) 13 International Journal on Minority and Group Rights 367 at 370.138 Goodland, Robert, Economic Development and Tribal Peoples: Human Ecologic Considerations (Washington D.C.: World Bank Group Study 1982).139 MacKay, Fergus, “The Draft World Bank Operational Policy 4.10 on Indigenous Peoples: Progress or More of the Same?” (2005) 22 Arizona Journal of International and Comparative Law 65 at 65-66.
39
as outdated by other international bodies.140 Therefore, a review undertaken by the office of
Environmental and Scientific Affairs in 1987 concluded that a revision of the policy was
necessary, with a shift in the definition away from the focus on isolation and acculturation of
tribal societies towards a broader approach including all indigenous peoples.141 It also
recommended to incorporate indigenous peoples into the Bank's overall environmental program
and to promote their direct participation in the planning of projects.
As a result of this review and massive criticism of OMS 2.34 by indigenous groups and non-
governmental organizations, in 1991 the World Bank issued Operational Directive 4.20 (OD
4.20).142 This new Directive indeed included a broader definition of indigenous peoples, as had
been recommended in the review, and stated as its explicit aim that they benefit from
development projects.143 To this end, it called for informed participation of indigenous peoples
and required special Indigenous Peoples Development Plans to be prepared in connection with
every investment project which affected them.144 OD 4.20 thus expressed a fundamental shift in
the Bank's policy towards an active role of indigenous groups.145
The Directive has been subject of a continuous revision since 1994 as a part of a broader
framework aimed at safeguarding environmental and social aspects which may be affected by
Bank financed projects.146 A new draft Operational Policy 4.10 (OP 4.10) was prepared in 2000
and underwent a process of consultation with representatives of different interest groups, such as
borrower governments, indigenous organizations, non-governmental organizations, academia and
140 Errico, supra note 137 at 368-369.141 World Bank, Office of Environmental and Scientific Affairs, A Five-Year Implementation Review of OMS 2.34 (1982-1987), World Bank, Projects Policy Department, June 1987. 142 World Bank Operational Directive 4.20 on Indigenous Peoples, September 1991, available at: http://hei.unige.ch/~clapham/hrdoc/docs/WBOD4.20.htm.143 Ibid., paras. 2 and 3.144 Ibid., paras. 8 and 13 ff. 145 Errico, supra note 137 at 370.146 Ibid. at 386.
40
development institutions.147 The end result, however, was criticized by indigenous groups as
merely converting the existing directive into a new policy format, without offering any
substantive guarantees for them in relation to development projects.148 They hence rejected the
draft as being inconsistent with their internationally recognized rights.149 In spite of such
criticism, OP 4.10 was adopted by the World Bank on 20 May 2005 and entered into force in July
of the same year.150
The greater part of the discussions on the new Operational Policy revolved around the question of
participation by indigenous peoples. In the end, the drafters refused to include a duty to obtain
free, prior and informed consent, but instead included the rather unclear formula according to
which “the Bank requires the borrower to engage in a process of free, prior, and informed
consultation”, which needs to “result in a broad community support to the project by the affected
Indigenous Peoples” in order to be eligible for Bank financing.151 It did so in spite of an
Extractive Industries Review, commissioned by the World Bank itself, which came to the
conclusion that recognition and implementation of free, prior, and informed consent is
necessary,152 an assertion shared by many of the international bodies cited above. The Executive
Directors of many countries, such as Thailand/Indonesia, Germany and Switzerland expressed
support for a notion that granted the right of free, prior and informed consent to the community
directly affected, which was the principle stakeholder.153 However, a number of countries rejected
147 Ibid. at 371.148 MacKay, supra note 139 at 66-67.149 See World Bank Round Table Discussion of Indigenous Representatives and the World Bank on the Revision of the World Bank's Indigenous Policy, 18 October 2002, available at: http://forestpeoples.gn.apc.org/Briefings/World%20Bank/wb_ip_round_table_summary_oct_02_eng_pdf.150 World Bank Operational Policy 4.10 – Indigenous Peoples of 20 May 2005, available at: http://web.world-bank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANUAL/0,,contentMDK:20553653~pagePK:64141683~piPK:64141620~theSitePK:502184,00.html. 151 Ibid., para. 1. 152 World Bank Group, Extractive Industries and Sustainable Development: An Evaluation of World Bank Group Experience, July 29, 2003, see Errico, supra note 137 at 385; MacKay, supra note 139 at 77.153 See MacKay, ibid. at 78.
41
it as effectively constituting a veto right for a certain group which was incompatible with
democracy and equality, insisting that sub-soil resources were in state ownership.154 The failure to
include a duty to obtain consent has been highly criticized by indigenous groups and other
commentators as falling behind established international standards.155
The wording of the policy is rather equivocal. It appears that the notion of free, prior and
informed consultation carried out in good faith, within a gender and inter-generationally inclusive
framework, which is appropriate to the social and cultural values of the indigenous peoples and
their local conditions, and allowing for well-informed participation,156 is focused more on the
process then on the resulting community support.157 On the other hand, para. 11 of OP 4.10 clearly
states that “[t]he Bank does not proceed further with project processing if it is unable to ascertain
that such support exists.” While there is thus no explicit negative veto right for indigenous groups
enshrined in the policy, the latter provision turns the matter into a positive prerequisite of existing
broad community support.
In addition, the policy foresees special considerations where rights to land and natural resources
are affected, which indigenous peoples are regarded to be especially tied up with. The borrower is
to pay particular attention to the customary individual and collective rights of aboriginals
pertaining to land or territories, to the need to protect such lands and resources against illegal
intrusion or encroachment, as well as to indigenous peoples' natural resources management
practices.158 If the project involves the commercial development of natural resources, the 154 Ibid. at 78.155 See, among others, World Bank Round Table Discussion of Indigenous Representatives and the World Bank on the Revision of the World Bank's Indigenous Policy, supra note; “Comments on World Bank Management Response to the Final Report of the Extractive Industries Review”, submitted by Indigenous Peoples' Organisations, 18 July 2004, available at: http://eireview.info/doc/IP%20EIR%20ManRes-short-sig.doc; Errico, supra note 137 at 385; MacKay, ibid. at 68-69 and 77-78; MacKay, Fergus, “Indigenous Peoples' Right to Free, Prior and Informed Consent and the World Bank's Extractive Industries Review” (2004) 4 Sustainable Development Law and Policy 43. 156 See World Bank OP 4.10, supra note 150, para. 10.157 MacKay, supra note 139 at 81.158 World Bank OP 4.10 supra note 150, para. 16.
42
borrower is to ensure that as part of the free, prior and informed consultation process the affected
communities are informed of, inter alia, their rights to such resources under statutory and
customary law.159
The Inter-American Development Bank had already recognized in its 1990 Strategies and
Procedures on Sociocultural Issues as Related to the Environment that projects which may have
been intended to benefit indigenous groups often instead threaten their physical and sociocultural
survival.160 It therefore established a principle according to which in general the Bank “will not
support projects that involve unnecessary or avoidable encroachment onto territories used or
occupied by tribal groups or projects affecting tribal lands, unless the tribal society is in
agreement with the objectives of the project”.161 This document, however, while providing an
advanced scope of protection for the time, still focused primarily on isolated tribes. A report on
the Eights General Increase in the Resources of the Bank, adopted in 1994, required the
systematic inclusion of indigenous issues in the policies and projects of the Inter-American
Development Bank.162 It still took another twelve years until the Bank finally adopted an
Operational Policy on Indigenous Peoples and Strategy for Indigenous Development in 2006.163
In this Policy, the Bank particularly subscribes to strengthening the capacity of indigenous
peoples to manage and govern their lands and territories, their institutional capacities, as well as
their ability to undertake dialoge and negotiations with States and other actors.164 With regard to
natural resources, the Policy is rather vague, however, speaking only of “indigenous co-159 Ibid., para. 18.160 Inter-American Development Bank, Environmental Committee, “Strategies and Procedures on Sociocultural Is-sues as Related to the Environment“ (Washington, D.C.: June 1990) at 1, available at: http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=362137.161 Ibid. at 3.162 Inter-American Development Bank, Doc. AB-1704, para. 2.27.163 Inter-American Development Bank, “Operational Policy on Indigenous Peoples and Strategy for Indigenous De-velopment”, OP-765 and strategy GN-2387-5, adopted on 22 February 2006, available at: http://idbdocs.iadb.org/ws-docs/getdocument.aspx?docnum=1442296. 164 Ibid. at 34.
43
management” pursuant to the standards of ILO Convention No. 169, as well as national
regulations, with respect to participatory rights and fair compensation.165 However, the Policy also
ascertains that “[b]efore approving operations with particularly adverse impacts [on indigenous
communities], the Bank will demand evidence that the project proponent has reached satisfactory
and duly documented agreements with the peoples affected, or has obtained their consent.”166
Finally, the United Nations Development Group, which is an establishment that unites the 32
United Nations funds, programmes, agencies, departments, and offices that play a role in
development, and whose objective it is to coordinate, harmonize and align their activities,167 has
released Guidelines on Indigenous Peoples' Issues in 2008.168 Their purpose is to assist the UN
system in providing a “normative, policy and operational framework for implementing a human
rights based and culturally sensitive approach to development for and with indigenous
peoples”.169 These guidelines, which are inspired by the UN Declaration, contain one of the most
well-defined and unequivocal set of instructions for the dealing with indigenous peoples' natural
resources:
“- Indigenous peoples have rights to the natural resources on their lands although in some countries sub-surface and natural resource rights legally belong to the state. However, these rights are often expressed through legal agreements that define how resources will be used, ensuring protection of indigenous heritage, benefit sharing and compensation.- Indigenous peoples’ rights to resources that are necessary for their subsistence and development should be respected.- In the case of state owned sub-surface resources on indigenous peoples’ lands, indigenous peoples still have the right to free, prior and informed consent for the
165 Ibid. at 37.166 Ibid. at 39.167 See United Nations Development Group Fact Sheet, May 2009, available at: http://www.undg.org/docs/1864/UNDGFactSheet_5-22-09_viewing.pdf.168 United Nations Development Group, Guidelines on Indigenous Peoples' Issues, February 2008, available at: http://www.undp.org/partners/cso/indigenous/docs/UNDG_guidelines_on_Indigenous_Peoples_Issues_2008.pdf.169 Ibid. at 6.
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exploration and exploitation of those resources and have a right to any benefit-sharing arrangements.- Permits for extraction and even prospecting of natural resources on indigenous land should not be granted if the activity hinders indigenous peoples to continue to use and/or benefit from these areas or where the free, prior and informed consent of indigenous peoples concerned has not been obtained.”170
Mention should further be made of the Norms on the Responsibilities of Transnational
Corporations and Other Business Enterprises with regard to Human Rights.171 These norms,
which were approved by the UN Sub-Commission on the Promotion and Protection of Human
Rights in 2003, together with its Interpretative Commentary,172 are the first set of norms to
constitute an authoritative guide to social responsibility for transnational corporations and other
companies.173 They stipulate that states, as well as the transnational corporations themselves
within their respective sphere of influence, have the responsibility to ensure the protection of
human rights, including the rights and interests of indigenous peoples.174 The Commentary
clarifies these duties, stating that corporations shall respect the rights of indigenous peoples to
own, occupy, develop, control, protect and use their lands and natural resources and respect the
principle of free, prior and informed consent of the communities that will be affected by their
development projects.175
It is particularly interesting to observe that various of these bodies refer to one another in their
policies. Many guidelines and policies make mention of ILO Convention 169 and refer to its
170 Ibid. at 17.171 U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003), approved by the U.N. Sub-Commission on the Promotion and Protection of Human Rights, Res. 2003/16 of 13 August 2003, E/CN.4/Sub.2/2003/L.11 at 52; available at: http://www1.umn.edu/humanrts/links/norms-Aug2003.html.172 Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/38/Rev.2 (2003), available at: http://www1.umn.edu/humanrts/links/commentary-Aug2003.html.173 See Hillemanns, Carolin, “UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights” (2003) online: 4 German Law Journal 1065 at 1065, available at: http://www.germanlawjournal.com/article.php?id=330. 174 Supra note 171, para. 1.175 Supra note 172, para. 10(c).
45
regulations as the guiding principles in the international law on indigenous peoples.176 New ones
do so as well with regard to the UN Declaration on the Rights of Indigenous Peoples.177 UNDP's
Policy of Engagement further cites the Convention on Biodiversity and its regular references to
indigenous communities.178 By way of such cross-references, the different bodies engage actively
in the creation of new standards that are regarded as valid, independent of their binding power, by
the community of international organizations and actors.
IV. Concluding observations with regard to the development of international law
As has been shown, the aboriginal right to participation in decisions regarding their lands and
natural resources has been constantly evolving and is not yet at the end of its development
process. The current state of affairs is not clear without ambiguity, as some international actors
have advanced in their protection of indigenous rights, while others have faced opposition and
have rolled back. Some of the positions are purposely formulated in an indefinite way so as to
avoid a clear decision on the scope of participatory rights.
However, there is still an obvious development towards recognizing a duty of the state to obtain
free and informed consent of indigenous peoples prior to the exploration of natural resources.
This has been advanced to a great part by the jurisprudence of the Inter-American Commission
and the Inter-American Court of Human Rights, as well as by international treaty bodies. But also
international institutions have played a great part, as they have recognized the emergence of new
and more advanced aboriginal rights in their policies and observed their right to participation in
their practices. Finally, the Inter-American Court has determined that norms of international law 176 See, for example, UNDP and Indigenous Peoples, supra note 125 at para. 13; UN Development Group Guidelines on Indigenous Issues, supra note at 11.177 UN Development Group Guidelines on Indigenous Issues, ibid.178 UNDP and Indigenous Peoples, supra note 125 at 13.
46
can develop independently from domestic laws and have an autonomous meaning that can go
above what has been recognized by states within their domestic sphere.
D. How does the UN Declaration reflect and reinforces this current status of international law?
Many of the discussions and disagreements during the drafting process of the UN Declaration on
the Rights of Indigenous Peoples revolved around the issue of indigenous rights with regard to
natural resources on their lands. The original draft of the Declaration,179 adopted by the UN Sub-
Commission on Prevention of Discrimination and Protection of Minorities on 26 August 1994,180
provided for extensive sovereign rights for indigenous peoples over their territories. Its Article 26
reads:
“Indigenous peoples have the rights to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation of or encroachment upon these rights.”
Article 30 of the 1994 draft, which corresponds to Article 32 of the final General Assembly
Declaration, states:
“Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including the right to require that States obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in
179 UN Doc. E/CN.4/1995/2; E/CN.4/Sub.2/1994/56, October 28, 1994, reprinted in 34 I.L.M. 541-555.180 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, 46th Session, 1994, Resoluti-on 1994/45.
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connection with the development, utilization or exploitation of mineral, water or other resources. Pursuant to agreement with the indigenous peoples concerned, just and fair compensation shall be provided for any such activities and measures taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.”181
Additionally, draft Article 20 provides that indigenous peoples have the right to fully participate
in devising legislative or administrative measures that affect them. States are duty-bound to
obtain their free and informed consent before adopting and implementing any such measures.
During the further negotiations on the draft, states have tried to preserve their control over
indigenous lands and resources, and have proposed a number of amendments to weaken the rights
foreseen in the Declaration. Especially the United States made clear that under no circumstances
were they willing to accept a notion of internal self-determination which included indigenous
sovereignty over natural resources.182
During the negotiations within the Commission on Human Rights, the respective provisions
underwent several amendments and re-drafting. During the consultations that took part on the
articles related to land rights and self-determination during the sixty-first session in 2004,
proposals were made especially to change the wording from a duty to obtain the free and
informed prior consent of indigenous peoples before approving any project which would affect
their lands, territories and other resources into a mere obligation to seek consent.183 However,
after all positions were presented, the facilitator strongly suggested to keep the original
language.184 Another proposal tried to limit the scope of the duty to obtain consent to such
projects which significantly affect indigenous interests.185 On the other hand, states that were
181 Emphasis by the author.182 See Huff, supra note 42 at 321.183 See UN Commission on Human Rights, “Draft report of the working group established in accordance with the Commission on Human Rights resolution 1995/32”, Sixty-first session, UN Doc. E/CN.4/2004/WG.15/CRP.7 (16 December 2004), discussions on draft Article 30. 184 Ibid.185 See UN Commission on Human Rights, “Chairperson's summary of proposals”, Sixty-second session, UN Doc.
48
geared more positively towards the recognition of indigenous rights came back with counter-
proposals, formulating that: “Indigenous Peoples have the rights to the possession, ownership and
control of surface and subsurface resources within their traditional lands and territories.”186
The provision finally adopted, which uses the formulation “States shall consult and cooperate in
good faith with the indigenous peoples concerned through their own representative institutions in
order to obtain their free and informed consent” reflects the compromise agreed on. While it does
not require indigenous consent in absolute terms, it is still a stronger obligation than a mere
consultation. The process, must be geared towards obtaining the consent and, as emphasized,
must be carried out in a spirit of cooperation and good faith.
The second sentence of then Article 30, which now constitutes the third paragraph of Article 32,
was somewhat watered down. Where the original formulation foresaw just and fair compensation
for projects that affected indigenous territories, the new one only required that the state shall
provide effective mechanisms for such redress. The most significant cuts were made with regard
to Article 26. The extensive reference to the environment of traditional aboriginal lands in the
first draft, including the air, seas, sea-ice, flora, fauna and other resources, was eliminated, as was
the explicit reference to traditional laws and customs for the development and management of
resources.
In spite of this watering down of some of the original positions, the UN Declaration is still an
advanced instrument for the protection of aboriginal rights. The provision contained in Article 32
does not quite live up to the high standards set by the Inter-American Commission and Court and
by some other international bodies on the obtaining of consent. However, it emphasizes the
E/CN.4/2005/WG.15/CRP. 7 (20 December 2005), Article A30.186 See UN Commission on Human Rights, “Chairman's summary of proposals”, Eleventh session, in: Commission on Human Rights, Sixty-second session, UN Doc. E/CN.4/2006/79 (22 March 2006), Article A30.
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process of consultation with the ultimate goal of obtaining consent, as well as the requirement of
good faith on part of the state, and thereby goes father than the respective clause in ILO
Convention No. 169. On top of this, it should not be underestimated that the UN Declaration was
adopted with the votes of 144 states, in comparison to the 20 states which have ratified the ILO
Convention. This extraordinary approval by countries which in their national laws have far more
restrictive provisions, and some of which have previously been reprimanded by international
human rights bodies for their failure to protect lands and resources, testifies to a change in the
perception of indigenous rights. States have thereby proved their acceptance of a modern system
of aboriginal law which has developed in the international sphere and has become binding on
states regardless of their ratification of specific instruments.
E. The significance of rights over natural resources for the realization of indigenous rights
to their traditional lands
Besides the focus on the legal framework and developments in the rights of indigenous peoples,
the question of why natural resources are so significant for them should also be addressed. When
governments and private corporations talk about resources, they plan for their exploration and
exploitation and negotiate contracts for extraction of valuable materials. Natural resources are
seen as a source of wealth for a state and as a business opportunity. Even where the focus is rather
on conservation than on extraction, this is usually done with a view to future opportunities of
exploitation and business. Conservation of a resource just for its own sake, as is done, for
example, in the protection of biospheres and biodiversity, is a rather new phenomenon.
For first nations, natural resources that are located on their land can be a valuable financial
50
resource and a way for them to participate in development processes. Many indigenous
communities are among the poorest people in the world, and they thus agree to the exploitation of
resources on their lands and territories by the state or by private investors in order to profit from
the business and improve their living conditions. But on the other hand, nature has a distinct place
in first nations' history, traditions and believes that is unique to their culture and goes beyond the
mere financial value.187 The relationship with the land and all living things is at the core of their
societies.188 For indigenous peoples, their lands and resources are tied to their existence and
survival as a group.
“Land is the basis for the creation stories, for religion, spirituality, art and culture. It is also the basis for relationships between people and with earlier and future generations. The loss of land, or damage to land, can cause immense hardship to indigenous people.”189
First nations also have a perception of responsibility for the earth and nature which differs from
the Western understanding that lands are subject to sovereign rights and can be used and exploited
by the government or private persons. Sustainability of the environment and natural resources for
future generations is very important to them. In indigenous believes, land is not something
inherited from your ancestors, but something you borrow from your children.190
These aspects have to be taken into account when assessing an indigenous right over natural
187 See, e.g. Martinez-Cobo, José R., Study of Discrimination Against Indigenous Populations, vol. V, Conclusions, Proposals and Recommendations, UN Doc. E/CN.4 Sub.2 /1983/21/Add.8 at paras. 196 f., available at: http://www.wwan.cn/esa/socdev/unpfii/en/spdaip.html; Daes, supra note 25 at 76 ff; Henderson, James Sarkej, “Mik-maq Tenure in Atlantic Canada” (1995) 18 Dalhousie Law Journal 196.188 Daes, Erica-Irene, Indigenous Peoples and their Relationship to Land – Final Working Paper Prepared by the Special Rapporteur, UN Sub-Commission for the Promotion and Protection of Human Rights, UN Doc. E/CN.4/Sub.2/2001/21 of 11 June 2001 at para 13.189 ATSIC, Native Title Amendment Bill 1997, Issues for Indigenous Peoples (Australia: 1997), 5, cited by Xanthaki, Indigenous Peoples and United Nations Standards, supra note 36 at 237.190 United Nations Department of Public Information, “Indigenous People: The Significance of Land to Indigenous Peoples”, DPI/2068, 99-26210, October 1999 at 1.
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resources. Many have argued that the duty to obtain prior, free and informed consent by a
community before engaging in any form of use or exploitation of natural resources on their lands
would amount to a veto right, which is incompatible with basic understandings of democracy and
equality. During the drafting of the UN Declaration, some governments argued that such a right to
give or withhold consent would grant too extensive powers to a group of the population over the
common interest of the nation, and would therefore be anti-democratic and discriminate against
non-indigenous. A statement issued by the United States mission to the UN clearly sets out this
objection:
“The text also could be misread to confer upon a sub-national group a power of veto over the laws of a democratic legislature by requiring indigenous peoples, free, prior and informed consent before passage of any law that "may" affect them (e.g., Article 19). We strongly support the full participation of indigenous peoples in democratic decision-making processes, but cannot accept the notion of a sub-national group having a "veto" power over the legislative process.”191
Canadian Minister for Indian Affairs Chuck Strahl as well voiced the concern that the rights of
non-native Canadians would be threatened by such a veto power. He called the document
unworkable in a Western democracy under a constitutional government.
“In Canada, you are balancing individual rights versus collective rights, and (this) document . . . has none of that. By signing on, you default to this document by saying that the only rights in play here are the rights of the First Nations. And, of course, in Canada, that’s inconsistent with our Constitution.”
Similar arguments were advanced during the discussions around World Bank OP 4.10 by Latin
191 Hagen, Robert, “Position of the United States on the Rights of Indigenous Peoples”, Press Release #204(07) by the United States Mission to the United Nations, 13 September 2007, available at: http://www.shunpiking.com/ol0406/0406-IP-positionofUS.htm.
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America, Africa, Saudi-Arabia, Pakistan, the UK and others.192
The concern that a duty to obtain free, prior and informed consent would amount to a veto power
and ultimately to inequality between indigenous and non-indigenous people are objections that
cannot be ignored. Where the legal system establishes the ownership of and sovereignty over
natural resources as belonging to the state, even if they are found on private lands, it constitutes
an unequal treatment of land owners if indigenous groups are granted the power to give or
withhold their consent to exploitation, while others are withheld the same right.
However, such differentiated treatment might be justified. It has to be taken into account that
rights to land and natural resources constitute a part of the indigenous claim to self-determination.
This results from the very fact that lands and resources are so important to indigenous identity.
The significance of lands and resources for aboriginal peoples has long been recognized in
international legal instruments and by international bodies. Article 13(1) of ILO Convention No.
169 sets out that:
“In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.”
The UN Human Rights Committee, in its General Comment on Article 27 of the International
Covenant on Civil and Political Rights, points out that indigenous culture may manifests itself in
a particular way of life associated with the use of land resources.193 Also, in its 1999 Concluding
observations on Canada, it explicitly emphasizes that the right to self-determination requires that
192 MacKay, supra note 139 at 79.193 UN Human Rights Committee, General Comment No. 23 (50): The rights of minorities (Article 27), UN Doc. CCPR/C/21/Rev.1/Add.5 of 8 April 1994, para. 7.
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all peoples must be able to control their natural wealth and resources.194 The Inter-American
Court of Human Rights has made similar observations.195 Further, international institutions such
as the World Bank have recognized “that the identities and cultures of Indigenous Peoples are
inextricably linked to the lands on which they live and the natural resources on which they
depend. These distinct circumstances expose Indigenous Peoples to different types of risks and
levels of impacts from development projects, including loss of identity, culture, and customary
livelihoods, as well as exposure to disease.”196
The UN Development Group Guidelines on Indigenous Peoples most clearly point out the
importance of indigenous sovereignty over natural resources and the role first nations have been
playing in their management and conservation:
“Indigenous peoples’ natural resources are vital and integral components of their lands and territories. The concept includes the entire environment: surface and sub-surface, waters, forests, ice and air. Indigenous peoples have been guardians of these natural environments and play a key role, through their traditions, in respectfully maintaining them for future generations. They have managed these resources sustainably for millennia and in many places have created unique bio-cultural landscapes. Many of these indigenous management systems, even though altered or perturbed by recent processes of change, continue to contribute to the conservation of natural resources to this day.“197
The UN Declaration recognizes this special perception of land and resources. The Preamble
recognizes that control over developments affecting their lands, territories and resources will
enable indigenous peoples to maintain and strengthen their cultures, traditions, and institution.
194 UN Human Rights Committee, Concluding Observations on Canada, UN Doc. CCPR/C/79/Add.105 of 7 April 1999, para. 8. 195 See e.g. Inter-American Court of Human Rights, Case of Yakye Axa Indigenous Community, supra note 107 at para. 135; Case of Plan de Sanchez Massacre v. Guatemala (Reparations), IACtHR Ser. C 116, Judgment of 19 November 2004, para. 85. 196 World Bank OP 4.10, supra note 150 at para. 2.197 UN Development Group Guidelines on Indigenous Peoples Issues, supra note 176 at 17.
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Article 25 refers to their distinctive spiritual relationship to their lands, territories, waters and
coastal seas, and their responsibility to future generations in this regard. This understanding forms
the basis of aboriginal rights to lands and resources as enshrined in the declaration.
Finally, it has to be noted that the differentiation between surface and sub-surface rights, as is
made in the Roman law system, does no exist in aboriginal thinking. In the view of first nations,
surface as well as sub-surface resources are part of the mother land and have to be taken care of in
the same way.198
Thus, for a right to self-determination to be meaningful, it has to include sovereignty over lands
and natural resources. Even though a duty to obtain free, prior and informed consent grants
certain rights to aboriginal peoples to resist decisions of the state and thereby the democratically
elected government, this is inherent and necessary for any form of self-determination and
autonomy. Self-determination would be deprived of all meaning if the group that is granted such a
right had no means of opposing decisions of the majority elected government.
F. Conclusion
Indigenous peoples enjoy participatory rights with regard to activities of natural resource
exploitation or use on their traditional territories. This has been recognized at least since ILO
Declaration 169 was adopted in 1989. Those rights can emanate from two legal principles:
ownership of the land, and with it, its resources, or from self-determination.
The content of such participation has evolved over the years and is still in the process of
developing into a secured norm of international law. International organs, first and foremost the
Inter-American Commission on Human Rights and the Inter-American Court of Human Rights,
198 Nieva, supra note 35 at 7-8.
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have interpreted existing human rights norms to include a duty to obtain the free, prior and
informed consent of indigenous peoples. In its leading decision in the case of Awas Tingni v.
Nicaragua, the Commission and the Court first established that consent of the indigenous
inhabitants is necessary before granting a logging permission on their territory. They also
recognized communal property of aboriginal peoples as protected property under the relevant
human rights norms. In the decision on Maya Indigenous Communities of Toledo v. Belize, the
Commission extended this principle to the extraction of oil and other resources. Other
international bodies, such as the Committee of the International Convention against all Forms of
Racial Discrimination and the Committee on Economic, Social and Cultural Rights, have
followed the lead of the Court and Commission, investigating cases where states failed to obtain
prior consent of an affected aboriginal community and calling upon the states to observe those
rights. Also, international institutions have recently included in their policies the requirement to
obtain consent before engaging in or supporting any projects on indigenous lands. Considering
the special importance lands and resources play in aboriginal culture and tradition, such a right is
a necessary element of indigenous self-determination.
The UN Declaration has been drafted in the spirit of this newly evolved consent in the interna-
tional community. It regulates that indigenous peoples have the right to own, use, develop and
control their lands, territories and resources, and that states shall consult with them in order to ob-
tain their free and informed consent prior to the approval of any project in connection with the
utilization or exploitation of natural resources. This provision is in line with the newly developed
international law. With the overwhelming affirmation of the UN Declaration, the United Nations
General Assembly has recognized this right and taken a further step to reinforce it.
The approach towards indigenous peoples and their claim to self-determination has significantly
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changed in recent time, away from an assimilationist view towards a recognition of their
distinctive history, culture, religion, and view of the world. In accordance with this, the law on
indigenous peoples is still in a process of evolution and has to be open for new developments.
Land rights and the right to free, prior and informed consent are frequently violated in the
national context, which is why the victims still have to seek redress with the relevant international
organs, such as the Inter-American Commission on Human Rights and the Inter-American Court
of Human Rights. Those bodies have been successfully interpreting the law and setting the
standards for the protection of indigenous peoples. With the new UN Declaration, they have
another instrument at their hands to demonstrate the current state of the law. It is to be hoped that
the regulations set out in the UN Declaration will be observed by national governments and will
have a positive effect on the compliance with aboriginal rights.
