41
the appropriate measures to ensure the continuance of the relationship of the indigenous people
with their land or their culture.”225
(i)(c)(1)
Effective participation and consent
125.
The third guarantee established by the Court contains three separate but related
obligations. According to the Court, Article 1(1) of the American Convention requires that, in order
to guarantee that restrictions to the property rights of the members of the indigenous or tribal
peoples by the issuance of concessions or authorization or projects within their territory does not
amount to a denial of their survival as a people, States must comply with the following three
safeguards:
First, the State must ensure the effective participation of the members of the [people
concerned], in conformity with their customs and traditions, regarding any
development, investment, exploration or extraction plan […] within the [ancestral]
territory. Second, the State must guarantee that the [members of the people
concerned] will receive a reasonable benefit from any such plan within their
territory. Thirdly, the State must ensure that no concession will be issued within
[the ancestral] territory unless and until independent and technically capable
entities, with the State’s supervision, perform a prior environmental and social
impact assessment.226
126.
As explained by the Court, these safeguards “are intended to preserve, protect and
guarantee the special relationship that the members of the [indigenous people] have with their
territory, which in turn ensures their survival as a tribal people.”227 The three obligations are
complementary in their aim to guarantee the survival of the indigenous or tribal people.228
127.
With respect to the effective participation requirement, the organs of the interAmerican system have specifically established that indigenous and tribal peoples have a right to “be
involved in the processes of design, implementation, and evaluation of development projects
carried out on their lands and ancestral territories.”229 Moreover, the State must guarantee that
“indigenous peoples be consulted on any matters that might affect them,”230 and “the purpose of
225
I/A Court H.R. Case of the Saramaka People v. Suriname. Interpretation of the Judgment on Preliminary Objections,
Merits, Reparations, and Costs. Judgment of August 12, 2008 Series C No. 185, para. 29.
226
I/A Court H.R. Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations, and Costs.
Judgment of November 28, 2007. Series C No. 172, para. 129.
227
I/A Court H.R. Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations, and Costs.
Judgment of November 28, 2007. Series C No. 172, para. 129. I/A Court H.R. Case of the Kichwa Indigenous People of Sarayaku
v. Ecuador. Merits and Reparations. Judgment of June 27, 2012. Series C No. 245. para. 157.
228
I/A Court H.R. Case of the Saramaka People v. Suriname. Interpretation of the Judgment on Preliminary Objections,
Merits, Reparations, and Costs. Judgment of August 12, 2008 Series C No. 185, para. 38.
229
IACHR, Follow-Up Report – Access to Justice and Social Inclusion: The Road Towards Strengthening Democracy In
Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, para. 157.
230
IACHR, Follow-Up Report – Access to Justice and Social Inclusion: The Road Towards Strengthening Democracy In
Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, para. 157.