43
and for the purpose of reaching an agreement.240 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 international standards.”241
(i)(c)(2)
Benefit Sharing
130.
The second component relates to the sharing of the project’s benefits and requires
the establishment of mechanisms for participation in the benefits of the project for the communities
or peoples affected by the extraction of natural resources or the investment or development
projects.242 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 State, for example, but also to the
deprivation of the regular use and enjoyment of such property.”243
(i)(c)(3)
Social and environmental impact assessment
131.
The third guarantee relates to the carrying out of a prior social and environmental
impact assessment by “independent and technically capable entities, with the State’s
supervision.”244 The ultimate purpose of social and environmental impact studies is to “preserve,
protect and guarantee the special relationship” of the indigenous peoples with their territories and
…Continuation
239
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, para. 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, para. 248.
240
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. 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. 185-187.
241
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. 186.
242
IACHR, Democracy and Human Rights in Venezuela, 2009. Doc. OEA/Ser.L/V/II, Doc. 54, December 30, 2009, para.
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, paras. 248 and 297, Recommendations 5 and 6.
243
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. 138-139. See also 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 situation of human Rights and
fundamental freedoms of indigenous people, Rodolfo Stavenhagen, submitted in accordance with Commission resolution
2001/65 (Fifty-ninth session), United Nations Doc. E/CN.4/2003/90, January 21, 2003, para. 66.
244
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. 205.