46
reaching an agreement; c) appropriate and accessible consultation; d) the environmental
impact assessment, and e) informed consultation.176
163. Regarding the aforementioned, this Court recalls that it is the obligation of the State,
and not of the indigenous peoples, to prove that all aspects of the right to prior consultation
were effectively guaranteed in this specific case. 177 Non-compliance of the obligation to
consult, or the execution of the consultation without observing its fundamental characteristics,
may compromise the States’ international responsibility.
164. Below, we will analyze the alleged lack of consultation to the Community regarding: i)
the “Marbella”, “Laguna Negra”, and “Playa Escondida” tourism projects; ii) the “Punta Izopo”
protected area; iii) the expansion of the urban area and the sales of properties, and iv)
approval of the Law on Property in the year 2004.
(i)
The “Marbella” and “Playa Escondida” tourism projects
165. Regarding the “Marbella” project it is proven in the evidence that, between August
1993 and July 1995, the Municipality of Tela sold approximately 44 hectares of lands within
the area granted in guarantee of occupation in the year 1979, in favor of the company
IDETRISA, for the execution of the “Club Marbella” tourism project (supra para. 74). The
process to obtain the licenses required was in course in the year 1996. 178 In what refers to
the “Playa Escondida” tourism project (supra para. 89), the representatives argued that it
was in construction in the year 2013.179 During the visit in situ (supra para. 15), it was verified
that the construction had been finished and it was occupied.
166. In the years 1996 (March 28, 1996) and 2013, there was already an international
obligation for the State, as of the going into effect for Honduras of Convention 169 of the ILO
to conduct a consultation process with the Community (supra para. 119). Likewise, it can be
concluded from the evidentiary elements provided that the company IDETRISA and the
Marbella project are located within the area designated “Plot A1” (infra Map Annex), which
has been recognized by the State as traditional lands belonging to the Community (supra
para. 115). In that same sense, it can be seen in the evidence that the Playa Escondido project
was also developed on the territory of that same “Plot A1” (infra Map Annex).
167.
Therefore, the State should have consulted with the Community regarding the
“Marbella” and “Playa Escondida” projects prior to their execution, given they were developed
within their traditional territory and evidence that said consultations were carried out was not
provided. Consequently, the Court verifies that the right to consultation of the Community
and its members has been violated by the State, in relation to the development of these two
projects. The Court will not issue a ruling on the alleged lack of consultation regarding the
“Laguna Negra” project since it does not have enough documentation on its exact location
(supra para. 89).
(ii)
The “Punta Izopo” protected area
168. Regarding the Punta Izopo protected area and national park, it can be concluded from
the evidence that it was created by the National Congress on December 29, 2000, through
176
Cfr. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, párr. 178.
177
Cfr. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, párr. 179.
178
Cfr. Secretariat of State in the Environmental Office. Legal Certification of June 21, 1996 (evidence file, folio
2618).
179
7670).
Cfr. Document “Case of Playa Escondida”, annex to the Brief of Pleadings and Motions (evidence file, folio