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Human Rights Court Sets New Standard on Consultation of Indigenous Peoples

Continent-wide Implications as Inter-American Court Finds Ecuador Government Guilty of Rights Violations in the Sarayaku Case

Two articles on this important decision that should significantly strengthen the right of indigenous people in Central and South America to Free Prior Informed Consent. The first is from Amazon Watch and the second from The Economist.

Amazon Watch - FOR IMMEDIATE RELEASE - July 26, 2012

The Inter-American Court has issued an unequivocal sentence in favor of the Kichwa indigenous community of Sarayaku, culminating an 8-year process within the human rights institutions of the Organization of American States that establishes new guidelines on the right to consultation of indigenous peoples. Sarayaku, a rainforest community deep in Ecuador's Amazon, brought the case in 2006 over rights abuses suffered at the hands of the government as Argentine company CGC, in partnership with U.S.-based ConocoPhillips/Burlington Resources, pursued oil exploration against the community's wishes. The outcome of the case has widespread implications not only for governments of Latin American countries but also the multinational companies operating therein.

Reflecting a global trend toward strengthening of indigenous rights, the Court's landmark decision found the small Andean nation guilty on a number of counts, including violating the indigenous right to prior consultation and the physical integrity of the community members. The decision outlines the most detailed binding language regarding the parameters of the consultation process to date, and will serve as the new standard as countries updated and implement regulations regarding the consultation of indigenous peoples.

Sarayaku's elected president, José Gualinga, stated on Wednesday that, "Sarayaku welcomes this victory, gained through the efforts of its people and the support of allied people and organizations committed to the rights of indigenous peoples. Sarayaku will be closely monitoring compliance with this sentence and we will ensure that indigenous peoples' territories will be respected in the face of damaging extractive industries such as oil drilling."

Concrete recommendations of the Court include the Ecuadorian State obligatorily consulting with the Kichwa of Sarayaku, "in the eventual case that they plan to carry out any natural resource extraction activity or project in their territory." Additionally, the State has to "neutralize, deactivate, and dig up the pentolite (explosives used to search for oil) on the surface and buried within the Sarayaku people's territory," carry out a public act recognizing their international responsibility for the facts in the case, and pay reparations for the material and non-material damages to the indigenous people. Notably, the decision states that consultation should be carried out in good faith in order to achieve "agreement or consent" and a "consensus between parties."

The ruling comes as the administration of Ecuadorian President Rafael Correa is preparing to expand oil exploration throughout the southeastern Ecuadorian Amazon, in an oil-block auction planned for October 2012 known as the "11th Round." The 10 million acres of Amazon rainforest represented by these oil blocks are found entirely within legally titled indigenous territory. These oil blocks are in violation of the core human rights principles outlined by the Court's ruling, for not having passed through good-faith consultation processes. Seven indigenous nationalities have repeatedly rejected the 11th Round, most recently in February of this year.

The implications of the judgment will reverberate not only across Ecuador but throughout the Latin America, where indigenous communities are under increasing pressure for natural resource extraction in their territories, regardless of the steep environmental and social costs. Around the Americas, public and private projects are facing growing resistance from indigenous and other local communities that are demanding respect for their health and homelands.

In Peru, Andean communities have mobilized en masse against the $5 billion Conga mine project, run by U.S.-based Newmont Mining, which will destroy four highland lakes. Police repression recently resulted in the deaths of 5 protesters. In Brazil, the $12 billion Belo Monte hydroelectric dam is running into growing opposition from indigenous and riverbank communities that will be decimated by the destruction of 62 miles of the Xingu river. In Bolivia, indigenous communities have marched several years running against the proposed highway through the TIPNIS indigenous reserve. These are but several amongst hundreds of similar cases across the region.

"The Sarayaku decision is an historic victory for indigenous rights. It clearly affirms the abuses that the Kichwa suffered at the hands of the Ecuadorian security forces, and spells out how similar abuses can be avoided," said Amazon Watch founder and Executive Director Atossa Soltani. "This ruling should serve as a warning to any company or any government that indigenous communities must be meaningfully consulted prior to moving ahead with economic activities. If not, a resource extraction project could be suspended or canceled and serious legal liabilities could be imposed."

For more information, contact:
Kevin Koenig (in Quito) +593-9794-9041
Andrew Miller (in Washington) +1-202-423-4828

From The Economist

Cowboys and Indians - A ruling on an oil project reasserts the Indigenous' right to consultation.

DEEP in the rainforest, the village of Sarayaku is two days by river from the nearest town. But its 1,200 Kichwa Indians are now in the spotlight. On July 25th the Inter-American Court of Human Rights ruled that Ecuador’s government had ignored the rights of Sarayaku’s residents when granting permission for an energy project—putting governments in the Americas on notice that big physical investments are not legal until the indigenous people they affect have had their say.

The dispute began in 1996 when Petroecuador, the state oil firm, signed a prospecting deal with a consortium led by Argentina’s Compañía General de Combustibles (CGC). Much of the area it covered was the ancestral land of Sarayaku’s residents, who were not consulted. CGC later offered locals medical aid for their consent. Some villages signed up, but Sarayaku held out.

Nonetheless, by early 2003 CGC had drilled 467 boreholes around the town for seismic surveying, and packed them with 1,433kg of high explosives. They were never detonated, and remain buried in the forest. As well as felling trees and destroying a sacred site, the company ruined some of Sarayaku’s water sources. Work ceased in 2003, and CGC’s contract ended in 2010.

The court found that the state had breached the villagers’ rights to prior consultation, communal property and cultural identity by approving the project, and that CGC’s tests had threatened their right to life. It ordered the government to pay damages, clear the remaining explosives and overhaul its consultation process. In future affected groups must be heard in a plan’s “first stages…not only when the need arises to obtain the approval of the community.” However, the judges did not ban prospecting on Sarayaku lands. The right to consultation does not grant a veto.

The ruling will be studied closely in the myriad Latin American countries struggling to balance big investments with local rights. A narrow reading of the decision suggests that governments must tiptoe around indigenous concerns, but can act more boldly when other groups protest, since the ruling was based partly on the International Labour Organisation’s Indigenous and Tribal Peoples Convention.

The ruling also shows that the regional justice system has not lost its mettle. In 2011 the Inter-American Commission on Human Rights, which litigates cases at the court, asked Brazil to halt work on the huge Belo Monte dam because its neighbours were not given a sufficient chance to speak up. Brazil’s government, which had authorised the dam only after a long public debate, saw this as a violation of its sovereignty. It did not comply, and stopped contributing money to the commission.

The commission was weakened by angering the region’s biggest country and by the criticism that it had exceeded its mandate. After Brazil presented new evidence in the case, the commission reversed its stance on Belo Monte. Moreover, last month the Organisation of American States voted to draft a reform plan for the commission, which some fear could strip it of important powers. Ecuador was among the commission’s loudest critics.

The Sarayaku case was not as heated as Belo Monte, since Ecuador’s government had already promised to pay damages. However, the court’s decision did strongly reassert its right to intervene in development cases. Moreover, Ecuador’s government plans to tender a big chunk of the Amazon for oil exploration later this year, despite indigenous opposition. If neither side backs down and the protesters appeal, the court’s next ruling on development in Ecuador may be far more contentious.

July 28th, 2012



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