By Jackie Hartley, Faculty of Law, University of New South Wales
The Inter-American Court of Human Rights may soon have an opportunity to confirm whether, and under what circumstances, States are required to obtain the consent of Indigenous peoples in relation to resource development.
Indigenous peoples have long asserted a right to determine whether resource development can occur within their traditional territories. In a range of international fora, advocates for the rights of Indigenous peoples frequently argue that States should obtain the free, prior and informed consent (FPIC) of Indigenous peoples before authorising development projects that affect them. To a significant extent, the emergence of this standard reflects the need for Indigenous peoples to protect the integrity of their lands and their relationships with them. However, the standard also reflects a strong belief that States ought to respect Indigenous peoples’ decision-making authority, governance structures and laws in relation to their territories.
Opposed to the recognition of a ‘veto’ right, States such as Australia and Canada have emphasised the importance of consultation and engagement with Indigenous peoples. Yet, a ‘duty to consult’ without an obligation to obtain consent may not meet the requirements of the peoples who are potentially affected by a resource development project.
Debates over the appropriate standard featured prominently in the drafting processes that led to the creation of the United Nations Declaration on the Rights of Indigenous Peoples. The adoption of the Declaration by the General Assembly in September 2007 did not put an end to this debate. In response, international institutions and officials with mandates regarding Indigenous peoples’ rights have endeavoured to explain the relationship between consent and consultation. In particular, the outgoing Special Rapportuer on the Rights of Indigenous Peoples (James Anaya) and the Expert Mechanism on the Rights of Indigenous Peoples have produced significant reports regarding the rights of Indigenous peoples to participate in decision-making.
In addition, the Inter-American Court has played a leading role in constructing a legal framework for the implementation of these standards. However, uncertainties continue to hang over the Court’s approach to FPIC.
In November 2007, the Inter-American Court adopted a contextual approach to defining the relationship between consultation and consent. In the Case of the Saramaka People v Suriname, the Court framed the ‘effective participation’ of Indigenous and tribal peoples in decision-making as a safeguard against resource developments that threaten their survival as peoples. According to the Court, States must consult with Indigenous and tribal peoples, in good faith, in relation to development or investment projects within their territory. Indigenous peoples do not have a right to veto State decisions. Yet, a State may be obliged to obtain the peoples’ FPIC in certain circumstances. In Saramaka, and its subsequent interpretation of this judgment, the Court variously explains that this higher obligation may arise where the project in question is large-scale; would exert a major or profound impact within the people’s territory; or could affect the integrity of the people’s lands and resources.
The Court expanded upon the elements of an effective consultation process in the Case of the Kichwa People of Sarayaku v Ecuador (2012). Drawing on an extensive review of international and domestic standards, the Court acknowledged that Indigenous peoples’ right to be consulted is now a general principle of international law. However, the Court did not consider whether an obligation to obtain consent arose in this case. In particular, it did not refer explicitly to this element of the Saramaka judgment.
It is possible to interpret the Court’s silence in Sarayaku over consent and its emphasis on consultation as an attempt to quietly step away from the full extent of the safeguard elaborated in Saramaka. An alternative reading is that the Court deliberately went no further than it was required to in relation to the facts in issue in Sarayaku. In this case, Ecuador had clearly failed to consult adequately with the Sarayaku People regarding resource development on their lands and had thus violated their right to property under the American Convention on Human Rights. In order to reach this conclusion, the Court did not need to engage in a more wide-ranging and controversial inquiry into whether Ecuador was additionally required to obtain the Sarayaku People’s consent. Regardless, the Court’s reluctance to build upon its previous statements on FPIC raises questions regarding the extent to which the Court has embedded this standard within its jurisprudence.
The Court may have further opportunities to consider the relationship between consultation and consent in the near future. In 2013 and early 2014, the Inter-American Commission on Human Rights referred several cases involving Indigenous peoples’ land, territories and resources to the Court. Most recently, on 26 January 2014, the Commission filed an application with the Court concerning the Kaliña and Lokono Peoples’ dispute with Suriname. Among other issues highlighted in a Press Release concerning the case,[*] the Commission submits that Suriname authorised mining activity without conducting ‘any consultation process designed to obtain the prior, free, and informed consent of the Kaliña and Lokono peoples’. However, the Commission stops short of analysing whether Suriname ought to have obtained the consent of the Kaliña and Lokono peoples in these circumstances.
It remains to be seen whether (if the case progresses) the Court will take a firm stance on the issue of consent or if it will focus upon Suriname’s obligations to consult with the Kaliña and Lokono Peoples. As Sarayaku demonstrates, a State’s failure to consult with Indigenous peoples affected by resource development projects can lead to a denial of their rights. Where a State has failed to observe even the minimum standards of consultation, it may not be necessary for the Court to explore the additional question of whether the State ought to have obtained the consent of the Indigenous peoples concerned.
Such an approach reflects the unfortunate reality that States and corporations do not observe even the minimal safeguards of consultation in many instances of resource development throughout the world. Indeed, the Court may have chosen to focus upon the requirements of an effective consultation process in Sarayaku in order to encourage compliance with at least this important procedural safeguard.
Should it adopt a similar approach in the case of the Kaliña and Lokono Peoples, the Court may further strengthen international standards concerning consultation. Yet, a focus on consultation without further considering FPIC would do little to clarify the Court’s position on the relationship between these standards. In short, this approach would not answer the question – when does the ‘c’ in FPIC mean ‘consent’ in the Inter-American human rights system?
[*]At the time of writing, the Commission had yet to make its full letter of submission or its Merits Report on the case available on its website.