65
citizenry or a particular group) for the exercise of other rights. In effect, when the exercise of the
fundamental rights of people depend on those people having relevant public knowledge, the State must
provide it in a manner that is timely, accessible, and complete. In this sense, the Commission has
established that the right of access to information is a key instrument for the exercise of other human
237
rights, “particularly by the most vulnerable individuals.”
223.
The timely, sufficient, and clear provision of information to indigenous peoples on outside
interventions that can affect their territory is an indispensable condition for adequately guaranteeing the
exercise of their right to collective property over their territories. Likewise, the close relationship that
indigenous peoples have with their territory means that the right of access to information about possible
exogenous interventions on indigenous territory that could have a serious impact on the community’s
habitat can become a mechanism that is necessary for ensuring other right like the right to the health of
group members and even their right to exist as a community. Finally, the right of access to information on
exogenous interference on indigenous land is an indispensable condition for guaranteeing control over
political decisions that can compromise the collective rights of a People, as well as fundamental rights
238
that would also be affected. The Inter-American Court has indicated that indigenous peoples’ exercise
of the right to collective property requires “the State to both accept and disseminate information, and
entails constant communication between the parties (…) in good faith, through culturally appropriate
239
procedures and [have] the objective of reaching an agreement.”
224.
According to a systematic interpretation of the jurisprudence and instruments of the interAmerican system for the protection of human rights, the right of access to information as a condition for
the exercise of the rights derived from the collective property of indigenous peoples and as a condition for
an adequate prior consultation in those cases in which that right is enforceable includes indigenous
peoples’ right to have the State provide accessible, sufficient, and timely information on, at least, two
aspects: (1) the nature and the impact of the outside intervention on goods or resources that are the
people’s property, and (2) the consultation process to be carried out and the reasons justifying it. Only in
this way can it be ensured that the information submitted by the State will allow the communities to form a
genuinely free and informed opinion in the decision-making process on the exploration and exploitation of
240
natural resources in their territories.
Evaluation of the present case in light of the foregoing rules
225.
Neither the public works undertaken by the State of Argentina in the ancestral territory,
nor the concession granted for hydrocarbon exploration complied with the minimum requirements
established by the inter-American human rights protection system.
…continuación
policies, opportunities for consultation, activities which affect members of the public, their budget, and subsidies, benefits and
contracts – on a routine and proactive basis, even in the absence of a specific request, and in a manner which ensures that the
information is accessible and understandable” (id., Principle 4).
237
IACHR, Annual Report of the Office of the Special Rapporteur for Freedom of Expression 2008. OEA/Ser.L/V/II.134.
Doc.
5.
25
February
2009.
Chapter
III.
Para.
147.
Available
at:
http://www.cidh.oas.org/annualrep/2008eng/Annual%20Report%202008-%20RELE%20-%20version%20final.pdf. Likewise, Article 9
of the Inter-American Democratic Charter provides that “the promotion and protection of human rights of indigenous peoples (…)
contribute to strengthening democracy and citizen participation.”
238
CIDH, Informe No. 40/04, Caso 12.053, Comunidades Indígenas Mayas del Distrito de Toledo v. Belice, 12 de octubre
de 2004, párr. 142.
239
Corte IDH. Caso del Pueblo Saramaka. Vs. Surinam. Excepciones Preliminares, Fondo, Reparaciones y Costas.
Sentencia de 28 de noviembre de 2007. Serie C No. 172, par. 133-134.
240
Corte IDH. Caso del Pueblo Saramaka. Vs. Surinam. Excepciones Preliminares, Fondo, Reparaciones y Costas.
Sentencia de 28 de noviembre de 2007. Serie C No. 172, par. 133-37. I/A Court H.R., Case of Yatama v. Nicaragua. Preliminary
Objections, Merits, Reparations and Costs. Judgment of June 23, 2005. Series C No. 127 para. 225. IACHR, Report No. 75/02.
Case 11.140. Mary and Carrie Dann. United States. December 27, 2002, para. 140. IACHR, Report No. 40/04. Case 12.053. Merits.
Maya Indigenous communities of the Toledo District. Belize. October 12, 2004, para. 142.