64
Commission’s pronouncements regarding the close link between indigenous peoples’ right to territory and
their effective and peaceable possession, along with other rights protected by the Convention.
249.
In light of the foregoing considerations, the Commission concludes that the State of
Honduras violated Article 21 of the American Convention, in conjunction with Articles 1.1 and 2 of the
same instrument, to the detriment of the Garífuna Community of Triunfo de la Cruz and its members.
3.
Right to prior, free, and informed consultation of the Community of Triunfo de la
Cruz and its members regarding decisions affecting their ancestral territory and
natural resources
250.
The IACHR and the inter-American Court have elaborated on the content and scope of
Article 21 of the Convention, in connection with the right of indigenous peoples to use and enjoy their
territory, by interpreting the previsions of said Article progressively, in such a way as to permit the
enjoyment and exercise of the rights recognized by the State in other treaties, such as the ILO
Convention No. 169. Through that Convention and developments in regulations and case law,
international law has endowed the duty to engage in prior consultations with the indigenous peoples
regarding situations that affect their territory with specific content.
251.
In this regard, the Commission has asserted the duty of States to consult indigenous
peoples regarding any activity or economic project that affects their lands and natural resources, including
cases in which the State seeks to exploit mineral resources. The right to consultation comprises the
positive duty of States to provide suitable and effective mechanisms for obtaining prior, free, and informed
consent in accordance with the customs and traditions of the indigenous peoples before undertaking
activities that may adversely affect their interests or their rights to their lands, territory or natural
resources.318
252.
The Commission has applied these principles in different contexts, including in
connection with infrastructure or development mega projects, such as highways, canals, dams, ports, and
similar projects, as well as to concessions for the exploration or exploitation of natural resources in
ancestral lands that may have an especially profound effect on indigenous peoples by endangering their
territories and ecosystems located therein, particularly when the ecological fragility of their territories is
319
combined with their demographic weakness. For that reason, the IACHR has pointed to the connection
between the negative effects of development and investment plans and projects in indigenous or tribal
territories, as well as of natural resource exploration and exploitation concessions, and violations of
320
multiple and individual and collective human rights.
It has also concluded that the environmental
318
See inter alia IACHR, Report on Ecuador 1997 Conclusions of Chapter IX. Human Rights issues of special relevance
to the indigenous inhabitants of the country and Conclusions of Chapter VIII; IACHR, Report on the Situation of Human Rights in
Colombia, Chapter X, 1999. Recommendation No. 4.; IACHR, Final Merits Report N° 75/02, Case 11.140, Mary and Carrie Dann
(United States), Annual Report of the IACHR 2002, paragraph 140; IACHR, Final Merits Report No. 40/04, Case 12.053. Maya
Indigenous Communities of the Toledo District (Belize), October 12, 2004, paragraph 142. Belize ratified Convention No. 169 in
1991; IACHR, Access to Justice and Social Inclusion: The Road Towards Strengthening Democracy In Bolivia. Chapter IV, Rights of
Indigenous Peoples and Peasant Communities, paragraph 248. Bolivia ratified Convention No. 169 of the International Labour
Organization in 1991; IACHR, Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources. Norms
and Jurisprudence of the Inter-American Human Rights System. OEA/Ser.L/V/II.Doc.56/09, December 30, 2009, Chapter IX.
319
IACHR, Third Report on the Situation of Human Rights in Colombia. Doc. OEA/Ser.L/V/II.102, Doc. 9 rev. 1, February
26, 1999, paragraphs 33-35.
320
For example, they have concluded that the right to live in dignity is violated when development projects cause environmental
pollution and harmful effects on basic subsistence activities, affecting the health of the indigenous and tribal peoples in the territories
where those projects are carried out. [IACHR, Access to Justice and Social Inclusion: The Road Towards Strengthening Democracy
In Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, paragraph 250]. In particular, mention was made of “adverse effects on
health and production systems; changes in domestic migration patterns; a decline in the quantity and quality of water sources;
impoverishment of soils for farming; a reduction in fishing, animal life, plant life, and biodiversity in general, and disruption of the
balance that forms the basis of ethnic and cultural reproduction.” These constitute violations of the human rights of the indigenous
peoples living in the places where mining, timber, and oil projects are conducted. [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,
paragraph 158].