Indigenous peoples, Afro-descendent communities, and natural resources

182 Pages·2016·3.51 MB·English

OEA/Ser.L/V/II.
Doc. 47/15
31 December 2015

Original: Spanish

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
Indigenous Peoples,
Afro-Descendent Communities,
and Natural Resources: Human
Rights Protection in the Context of
Extraction, Exploitation, and

Development Activities

2015
www.iachr.org
OAS Cataloging-in-Publication Data

Inter-American Commission on Human Rights.
Indigenous peoples, Afro-descendent communities, and natural resources:
Human rights protection in the context of extraction, exploitation, and
development activities.
p. ; cm. (OAS. Official records ; OEA/Ser.L)
ISBN 978-0-8270-6557-4
1. Human rights. 2. Indigenous peoples. 3. African diaspora. 4. Minorities--Civil
rights.
I. Title. II. Series: OAS. Official records ; OEA/Ser.L.

OEA/Ser.L/V/II. Doc.47/15OEA/Ser.L/V/II.Doc. 47/15

Report produced thanks to the financial support of the organization IWGIA.
The positions herein expressed are those of the Inter-American Commission on Human Rights
(IACHR) and do not reflect the views of IWGIA.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
Members
Rose-Marie Belle Antoine
James L. Cavallaro
José de Jesús Orozco Henríquez
Felipe González
Rosa María Ortiz
Tracy Robinson
Paulo Vannuchi
Executive Secretary
Emilio Álvarez-Icaza Longoria
Assistant Executive Secretary

Elizabeth Abi-Mershed
Approved by the Inter-American Commission on Human Rights on December 31, 2015.
TABLE OF CONTENTS
EXECUTIVE SUMMARY 9

CHAPTER 1 | INTRODUCTION 15

CHAPTER 2 | HUMAN RIGHTS OBLIGATIONS OF STATES IN THE
CONTEXT OF EXTRACTIVE, EXPLOITATION, AND
DEVELOPMENT ACTIVITIES 27
A. General human rights obligations

27
1. State obligations with regards to human rights violations committed
B. State obligations in the context of extractive, exploitation and development
by private actors 30
projects

34
1. Duty to design, implement and effectively enforce an adequate legal
framework 40
2. The need for the legal framework to adequately address foreign
companies 44
3. Duty to prevent, mitigate and eradicate the negative impacts on
human rights 47
4. Obligation to supervise development and extractive activities 53
5. Duty to guarantee effective participation and access to information 56
6. Duty to prevent illegal activities and forms of violence against the
population in areas affected by extractive or development activities 62
7. Duty to guarantee access to justice: investigation, sanction, and
reparations for human rights violations 65
a. Specific Problems Attributable to Foreign Investment 69
CHAPTER 3 | SPECIFIC OBLIGATIONS AND GUARANTEES IN
RELATION TO INDIGENOUS AND TRIBAL PEOPLES
AND AFRO-DESCENDENT COMMUNITIES 75
A. Specific guarantees for indigenous and tribal peoples in the context of extractive

and development activities

77
1. Duty to ensure that the restrictions on the use and enjoyment by
indigenous and tribal peoples of their natural resources do not result
in a denial of their physical and cultural survival 82
2. Effective participation, impact studies on human rights, and shared
benefits 85
a. Right to previous, free, and informed consultation and consent 85
b. Environmental and social impact assessments 106
B. General considerations on the right to collective property of indigenous and
c. Right to benefit sharing in a project 109
tribal peoples in the inter-American system

111
1. The principle of non-discrimination in relation to the right to collective
property 119
CHAPTER 4 | IMPACT ON THE FULL EXERCISE OF THE RIGHTS
OF INDIGENOUS AND AFRO-DESCENDENT
COMMUNITIES 127
A. Right to the collective property of indigenous peoples and Afro-descendent

communities over their territories and natural resources

B. Right to Cultural Identity and Religious Freedom
129
C. Right to Life
138
D. Right to health, personal integrity and a healthy environment
141
E. Economic and Social Rights
145
F. Right to Personal Liberty and Social Protest
151
G. Protection from forced displacement
155
H. Differentiated impact in groups and sectors of special concern
160
165
1. Authorities, leaders from indigenous and tribal peoples, as well as
Afro-descendent communities, and human rights defenders 165
2. Women 167
3. Children 169
4. Older persons 172
5. Persons with disabilities 173
CHAPTER 5 | RECOMMENDATIONS 177
A. Recommendations on State human rights obligations in the context of

extractive, exploitation, and development activities

B. Recommendations concerning the obligations and specific guarantees for
177
indigenous and tribal peoples and Afro-descendent communities

C. Recommendations with regard to the impact on the full enjoyment of the
179
rights of indigenous and tribal peoples, and Afro-descendent communities

180
EXECUTIVE SUMMARY

Executive Summary | 9
EXECUTIVE SUMMARY

1. The Inter-American Commission on Human Rights (hereinafter "Commission" or
"IACHR") addresses in this report State obligations with regard to extraction,
exploitation, and development activities concerning natural resources.
2. Through the implementation of its monitoring mechanisms, the Commission has
consistently received information evidencing the human, social, health, cultural
and environmental impacts of these projects on indigenous peoples and Afro-
descendent communities. Many extractive and development activities in the
hemisphere are implemented in lands and territories historically occupied by
indigenous and Afro-descendent communities, which often coincide with areas
hosting a great wealth of natural resources. Moreover, the Commission has
received information indicating that these projects and activities are still not
properly supervised by host states and states of origin, the scarcity of mechanisms
to prevent human rights violations, and the formidable barriers faced by victims,
peoples, and communities to access justice when these human rights violations
take place. These challenges, as well as the widespread implementation of these
projects in the Americas, promoted the preparation of this report by the
1
Commission.
3. The Commission underscores that it recognizes the importance of these initiatives
to advance the prosperity of the peoples of the hemisphere, and may involve the
freedom of every State to exploit its natural resources through the granting of
concessions and investments of a private or public, national or international
nature. But at the same time, the Commission notes that these activities should be
implemented in conjunction with appropriate and effective measures to ensure
they are not executed at the expense of the human rights of the individuals,
communities or peoples who live in the areas where they take place.
4. Therefore, in this report the Commission affirms that although the rules of the
inter-American system neither prevent nor discourage development projects, the
Member States of the Organization of American States (hereinafter “OAS”) have,
under the inter-American human rights instruments, ineluctable obligations to
respect and guarantee relevant rights in all settings, including in regard to
e x t r a c t i o n a n d d e v e l o p m e n t a c t i v i t i e s . T h e r e a r e a r a n g e o f h u m a n r i g h t s w h i c h

1 The Commission has received information in the context of petitions, requests for precautionary measures,
on-site visits, hearings and regional initiatives indicating that extraction, exploitation and development
projects have been implemented in a significant number of countries throughout the Americas, including
Belize, Brazil, Colombia, Chile, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru
and Suriname, among others.
Comisión Interamericana de Derechos Humanos | CIDH