Protection of Indigenous Peoples’ Traditional Lands and Natural Resources

Introduction

• The Inter-American Court of Human Rights (I-ACtHR) has developed significant jurisprudence pertaining to the rights of indigenous peoples, particularly regarding safety concerning communal property and traditional lands.
• The protection offered extends to natural resources linked to ancestral lands, ensuring cultural survival in the Americas.
• Key rights for protection include effective participation, consultation, equitable sharing of benefits, and conducting prior environmental and social impact assessments for development projects.

Indigenous Rights and International Law

• Indigenous rights to traditional lands and resources are recognized through various international instruments:
  • ILO Convention No. 169 (1989): Articles 13-19 highlight the rights of Indigenous and Tribal Peoples over their land and resources.
  • UN Declaration on the Rights of Indigenous Peoples (2007): Article 26(1) asserts that Indigenous peoples have the right to traditionally owned lands, committed to respecting customs and traditions.
• Historical context emphasizes that indigenous peoples often face discrimination and exclusion from societal structures, affecting their cultural identity.

The Right to Communal Property

• The right to communal property is protected under Article 21 of the American Convention on Human Rights (ACHR).
• Cultural Identity Connection: The right is viewed not only as an individual property right but also rooted in a communal and cultural identity perspective, allowing indigenous peoples to maintain their spiritual and cultural activities integral to their existence.
• The I-ACtHR interprets property rights to embrace communal dimensions, acknowledging the distinctive relationship between indigenous peoples and their lands.

Connection between Land and Dignified Life

• Indigenous peoples’ traditional lands are essential for their cultural identity and living with dignity.
• Legal Framework: There’s a need to adhere to Article 4 of the ACHR, which recognizes the right to life as encompassing conditions adequate for a decent living.
• States are obligated to facilitate adequate conditions for indigenous peoples' survival and dignity through practical measures and legislation.

Indigenous Peoples’ Rights to Natural Resources

• Article 13(2) of the ILO Convention recognizes the right to natural resources on indigenous lands, emphasizing participation in management and conservation.
• Controversy exists around these rights, as they can conflict with national interests and economic development.
• Consultation Procedures: Any exploration or exploitation of resources requires prior informed consultation with Indigenous communities, ensuring their interests are protected.

Safeguards against Restrictions on Indigenous Rights

• The I-ACtHR has established specific safeguards when it comes to issuing logging and mining concessions in indigenous territories:
  1. Effective Participation: Participation of indigenous communities in decision-making is essential, honoring their traditions and ensuring informed consent.
  2. Benefit Sharing: Reasonable financial benefits need to be shared with these communities from projects affecting their territories.
  3. Environmental and Social Impact Assessments (ESIAs): Before any projects commence, appropriate assessments must be done to understand potential risks, ensuring the community's voice is heard.

Compensation for Property Rights Restrictions

• In cases of restricted access to lands due to state actions, indigenous peoples are entitled to compensation, generally in the form of land suited to their lifestyle.
• When relocation is necessary, states must collaborate with indigenous peoples to ensure the new lands sustain their community's development and cultural practices.
• Compensation forms also include monetary incentives, infrastructure, and development funds, aiming to mitigate the disempowering effects of land loss.

Conclusion

• The evolving jurisprudence from the I-ACtHR reflects a growing awareness of the complex dynamics of identity, culture, and rights concerning indigenous people.
• Protection of traditional lands fosters the cultural distinctiveness essential for community survival and dignity.
• States are urged to recognize the importance of balancing individual rights with collective indigenous claims, ensuring respect for their historical connection to the land, which meets their socio-cultural and existential needs.