not limited to ensuring their subsistence, but rather encompasses their own worldview and cultural
and spiritual identity.
B.3 Measures of protection to guarantee the right to communal property
156. The Inter-American Court has indicated that when States impose limitations or restrictions on
the exercise of the rights of indigenous peoples to the ownership of their lands, territories and
natural resources, certain guidelines must be respected. Thus, “when indigenous communal property
and individual private property enter into real or apparent conflict, the American Convention and the
Court’s case law provide guidelines to define the admissible restrictions,”173 which must be
established by law, necessary, proportionate and aimed at achieving a legitimate objective in a
democratic society without denying their right to exist as a people.174 The Court has also stated that,
in cases concerning natural resources on the territory of an indigenous community, in addition to the
above criteria, the State is must verify that these restrictions do not entail a denial of the survival of
the indigenous people themselves.175
157. For this reason, in the case of Saramaka v. Suriname, the Court established that, to ensure
that the exploration or extraction of natural resources in ancestral territories did not entail a
negation of the survival of the indigenous people as such, the State must comply with the following
safeguards: (i) conduct an appropriate and participatory process that guarantees the right to
consultation, particularly with regard to development or large-scale investment plans; (ii) conduct
an environmental impact assessment, and (iii) as appropriate, reasonably share the benefits
produced by the exploitation of natural resources (as a form of just compensation required by Article
21 of the Convention), with the community itself determining and deciding who the beneficiaries of
this compensation should be, according to its customs and traditions.176
158. In this case, no specific arguments have been presented concerning the said criteria to
determine the admissibility or validity of the restrictions to the communal ownership of the Sarayaku
territory, or regarding one of the measures of protection relating to the requirement to share the
benefits. Accordingly, the Court will not examine these issues and will proceed to refer to the right
to consultation.
B.4 The State’s obligation to guarantee the right to consultation of the Sarayaku People
159. The Court observes that, in general, the close relationship between the indigenous
communities and their land has an essential component, which is their cultural identity based on
their specific worldviews, which, as distinct social and political actors in multicultural societies, must
receive particular recognition and respect in a democratic society. Respect for the right to
consultation of indigenous and tribal communities and peoples is precisely recognition of their rights
to their own culture or cultural identity (infra paras. 212 to 217), which must be assured, in
particular, in a pluralistic, multicultural and democratic society.177
173
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, Merits, reparations and costs, para. 144. See also
Case of the Saramaka People v. Suriname. Preliminary objections, merits, reparations and costs, para. 128.
174
Cf. Case of the Saramaka People v. Suriname. Preliminary objections, merits, reparations and costs, para. 128.
Similarly, Case of the Yakye Axa Indigenous Community v. Paraguay, paras.144 and 145.
175
Cf. Case of the Saramaka People v. Suriname. Preliminary objections, Merits, reparations and costs, para. 129.
176
Cf. Case of the Saramaka People v. Suriname. Preliminary objections, merits, reparations and costs, para. 129, and
Case of the Saramaka People v. Suriname. Interpretation of the judgment on preliminary objections, merits, reparations and
costs, paras. 26 and 27.
177
In this regard, for example, in its Judgment C-169/01, the Constitutional Court of Colombia declared: “The Court has
already stated that “pluralism establishes the conditions to ensure that the axiological content of constitutional democracy
has a place in democracy and a democratic foundation. In sum, the free and popular choice of the best values is justified
formally by the possibility of choosing other values without restriction and substantively by the reality of a higher ethic”.
(Judgment C-089/94 ibid.). The same judgment indicated that the democratization of the State and society prescribed by the
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