67
obligation of States to carry out special and differentiated consultation processes when certain interests of
indigenous peoples and communities are to be affected is an obligation that has been clearly
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recognized.”
The Court has also specified that “it is the State’s obligation -and not that of the
Indigenous Peoples- to effectively demonstrate, in this specific case, that all aspects of the right to prior
337
consultation were effectively guaranteed.”
259.
In order to be consistent with inter-American human rights law, the consultation with the
indigenous peoples must fulfill certain requirements: it must be prior, that is to say, it must conducted
“from the first stages of planning or preparation of the proposed measures, so that the indigenous
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peoples can truly participate in and influence the decision-making process;”
it must be culturally
appropriate and take the traditional methods used by the people concerned to take decisions, as well as
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their own forms of representation; it must be informed, which requires that full and accurate information
340
be provided to the communities consulted regarding the nature and consequences of the process; and
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the consultation must be conducted in good faith and for the purpose of reaching an agreement.
Regarding the good faith requirement, the Court has emphasized specifically that said requirement “is
incompatible with practices such as attempts to disintegrate the social cohesion of the affected
communities, whether it is through the corruption of communal leaders or the establishment of parallel
leaderships, or through negotiations with individual members of the community that are contrary to
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international standards.”
260.
The second component presupposes the establishment of mechanisms for participation
in the benefits of the project for the communities or peoples affected by the extraction of natural
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resources or the investment or development plans or projects. In the Court’s opinion, “[…] the notion of
sharing benefits […] is inherent to the right of compensation recognized under Article 21.2 of the
Convention” and “extends not only to the total deprivation of property title by way of expropriation by the
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State, for example, but also to the deprivation of the regular use and enjoyment of such property.”
336
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. paragraphs 164 and 165.
337
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. paragraph 179.
338
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. paragraph 167 and paragraph 180-182. 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, paragraph
133.
339
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, paragraphs 27, 131, 133, 154. 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. paragraphs 201-202.
340
IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12,
2004, paragraph 142. 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, paragraph 133. IACHR, Report on the Situation of Human Rights in
Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997. IACHR, Report on the Situation of Human Rights in Ecuador. Doc.
OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997. 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 248.
341
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, paragraph 133. 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. paragraphs 185-187.
342
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. paragraph 186.
343
IACHR, Democracy and Human Rights in Venezuela, 2009. Doc. OEA/Ser.L/V/II, Doc. 54, December 30, 2009,
paragraph 1137, Recommendations 5 and 6; 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, paragraphs 248 and 297, Recommendations 5 and 6.
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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, paragraphs 138-139. Según advierte la Corte en dicha sentencia, en este
mismo sentido se han pronunciado distintos órganos internacionales de derechos humanos. See inter alia United Nations,
Committee on the Elimination of Racial Discrimination, Observations of the Reports submitted by States parties under article 9 of
the Convention. Concluding Observations on Ecuador, paragraph 16. United Nations, Report of the Special Rapporteur on the