42
such consultations should be to obtain their free and informed consent.”231 Through the
consultation process the participation of the indigenous and tribal peoples must be guaranteed “in
all decisions on natural resource projects on their lands and territories, from design, through
tendering and award, to execution and evaluation.”232
128.
For the Court, effective participation consists precisely in the right of the indigenous
peoples to prior consultation “in conformity with their customs and traditions, regarding any
development, investment, exploration or extraction plan” within their ancestral territory.233 The
Court has also considered that, in the case of large scale investment or development plans that
could have a major impact within the indigenous territory, “the State has a duty, not only to consult
with the [indigenous people], but also to obtain their free, prior, and informed consent, in
accordance with its customs and traditions.”234 The Court has emphasized that “the obligation to
consult, in addition to being a conventional standard, is also a general principle of International
Law” and that “nowadays the 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 recognized.”235 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 consultation were effectively guaranteed.”236
129.
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
be conducted “from the first stages of planning or preparation of the proposed measures, so that
the indigenous peoples can truly participate in and influence the decision-making process.”237 It
also must be culturally appropriate and take the traditional methods used by the people concerned
to take decisions, as well as their own forms of representation.238 It must be informed, which
requires that full and accurate information be provided to the communities consulted regarding the
nature and consequences of the process.239 The consultation must also be conducted in good faith
231
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. See inter alia IACHR, Report No. 40/04, Case 12.053, Maya
Indigenous Communities of the Toledo District (Belize), October 12, 2004, para. 143.
232
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, para. 248.
233
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, paras. 127, 128. 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, paras. 159-167.
234
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. 134.
235
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, paras. 164 and 165.
236
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. 179.
237
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. 167 and paras. 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, para. 133.
238
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, paras. 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, para. 201-202.