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Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, And

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Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, And OEA/Ser.L/V/II. Doc. 47/15 31 December 2015 Original: Spanish INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities 2015 www.iachr.org OAS Cataloging-in-Publication Data Inter-American Commission on Human Rights. Indigenous peoples, Afro-descendent communities, and natural resources: Human rights protection in the context of extraction, exploitation, and development activities. p. ; cm. (OAS. Official records ; OEA/Ser.L) ISBN 978-0-8270-6557-4 1. Human rights. 2. Indigenous peoples. 3. African diaspora. 4. Minorities--Civil rights. I. Title. II. Series: OAS. Official records ; OEA/Ser.L. OEA/Ser.L/V/II. Doc.47/15OEA/Ser.L/V/II.Doc. 47/15 Report produced thanks to the financial support of the organization IWGIA. The positions herein expressed are those of the Inter-American Commission on Human Rights (IACHR) and do not reflect the views of IWGIA. INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Members Rose-Marie Belle Antoine James L. Cavallaro José de Jesús Orozco Henríquez Felipe González Rosa María Ortiz Tracy Robinson Paulo Vannuchi Executive Secretary Emilio Álvarez-Icaza Longoria Assistant Executive Secretary Elizabeth Abi-Mershed Approved by the Inter-American Commission on Human Rights on December 31, 2015. TABLE OF CONTENTS EXECUTIVE SUMMARY 9 CHAPTER 1 | INTRODUCTION 15 CHAPTER 2 | HUMAN RIGHTS OBLIGATIONS OF STATES IN THE CONTEXT OF EXTRACTIVE, EXPLOITATION, AND DEVELOPMENT ACTIVITIES 27 A. General human rights obligations 27 1. State obligations with regards to human rights violations committed by private actors 30 B. State obligations in the context of extractive, exploitation and development projects 34 1. Duty to design, implement and effectively enforce an adequate legal framework 40 2. The need for the legal framework to adequately address foreign companies 44 3. Duty to prevent, mitigate and eradicate the negative impacts on human rights 47 4. Obligation to supervise development and extractive activities 53 5. Duty to guarantee effective participation and access to information 56 6. Duty to prevent illegal activities and forms of violence against the population in areas affected by extractive or development activities 62 7. Duty to guarantee access to justice: investigation, sanction, and reparations for human rights violations 65 a. Specific Problems Attributable to Foreign Investment 69 CHAPTER 3 | SPECIFIC OBLIGATIONS AND GUARANTEES IN RELATION TO INDIGENOUS AND TRIBAL PEOPLES AND AFRO-DESCENDENT COMMUNITIES 75 A. Specific guarantees for indigenous and tribal peoples in the context of extractive and development activities 77 1. Duty to ensure that the restrictions on the use and enjoyment by indigenous and tribal peoples of their natural resources do not result in a denial of their physical and cultural survival 82 2. Effective participation, impact studies on human rights, and shared benefits 85 a. Right to previous, free, and informed consultation and consent 85 b. Environmental and social impact assessments 106 c. Right to benefit sharing in a project 109 B. General considerations on the right to collective property of indigenous and tribal peoples in the inter-American system 111 1. The principle of non-discrimination in relation to the right to collective property 119 CHAPTER 4 | IMPACT ON THE FULL EXERCISE OF THE RIGHTS OF INDIGENOUS AND AFRO-DESCENDENT COMMUNITIES 127 A. Right to the collective property of indigenous peoples and Afro-descendent communities over their territories and natural resources 129 B. Right to Cultural Identity and Religious Freedom 138 C. Right to Life 141 D. Right to health, personal integrity and a healthy environment 145 E. Economic and Social Rights 151 F. Right to Personal Liberty and Social Protest 155 G. Protection from forced displacement 160 H. Differentiated impact in groups and sectors of special concern 165 1. Authorities, leaders from indigenous and tribal peoples, as well as Afro-descendent communities, and human rights defenders 165 2. Women 167 3. Children 169 4. Older persons 172 5. Persons with disabilities 173 CHAPTER 5 | RECOMMENDATIONS 177 A. Recommendations on State human rights obligations in the context of extractive, exploitation, and development activities 177 B. Recommendations concerning the obligations and specific guarantees for indigenous and tribal peoples and Afro-descendent communities 179 C. Recommendations with regard to the impact on the full enjoyment of the rights of indigenous and tribal peoples, and Afro-descendent communities 180 EXECUTIVE SUMMARY Executive Summary | 9 EXECUTIVE SUMMARY 1. The Inter-American Commission on Human Rights (hereinafter "Commission" or "IACHR") addresses in this report State obligations with regard to extraction, exploitation, and development activities concerning natural resources. 2. Through the implementation of its monitoring mechanisms, the Commission has consistently received information evidencing the human, social, health, cultural and environmental impacts of these projects on indigenous peoples and Afro- descendent communities. Many extractive and development activities in the hemisphere are implemented in lands and territories historically occupied by indigenous and Afro-descendent communities, which often coincide with areas hosting a great wealth of natural resources. Moreover, the Commission has received information indicating that these projects and activities are still not properly supervised by host states and states of origin, the scarcity of mechanisms to prevent human rights violations, and the formidable barriers faced by victims, peoples, and communities to access justice when these human rights violations take place. These challenges, as well as the widespread implementation of these projects in the Americas, promoted the preparation of this report by the Commission.1 3. The Commission underscores that it recognizes the importance of these initiatives to advance the prosperity of the peoples of the hemisphere, and may involve the freedom of every State to exploit its natural resources through the granting of concessions and investments of a private or public, national or international nature. But at the same time, the Commission notes that these activities should be implemented in conjunction with appropriate and effective measures to ensure they are not executed at the expense of the human rights of the individuals, communities or peoples who live in the areas where they take place. 4. Therefore, in this report the Commission affirms that although the rules of the inter-American system neither prevent nor discourage development projects, the Member States of the Organization of American States (hereinafter “OAS”) have, under the inter-American human rights instruments, ineluctable obligations to respect and guarantee relevant rights in all settings, including in regard to extraction and development activities. There are a range of human rights which 1 The Commission has received information in the context of petitions, requests for precautionary measures, on-site visits, hearings and regional initiatives indicating that extraction, exploitation and development projects have been implemented in a significant number of countries throughout the Americas, including Belize, Brazil, Colombia, Chile, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru and Suriname, among others. Comisión Interamericana de Derechos Humanos | CIDH 10 | Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities are frequently impacted by the implementation of extractive and development projects, including the rights to life, to physical integrity, to health, to non- discrimination, to consultation, consent and to cultural identity, information and participation, among others, as will be discussed throughout this report. On this basis, the IACHR refers to the general duties of States in the various scenarios in which these activities take place. It takes into account that the States have different levels of involvement in extractive, exploitation and development activities, insofar as they are of a private, public, or mixed nature. The Commission also addresses in specific sections, the special obligations of the States regarding activities of this nature affecting the rights of indigenous peoples and Afro-descendent communities. 5. The Commission refers in the first chapter of this report to the content of the obligations that States must comply with in regard to extraction, exploitation, and development activities from the perspective of the Inter-American system. The starting point of the legal analysis presented by the Inter-American Commission in this report is the duty to respect and ensure all human rights with due diligence, and to bring domestic legislation in line with the provisions of the Inter-American human rights instruments. Taking into account an evolutionary and systematic interpretation of the American Declaration of the Rights and Duties of Man (hereinafter “American Declaration” or “ADRDM”) and the American Convention on Human Rights (hereinafter “American Convention” or “Convention”), the Commission considers that the States' obligations in these contexts, revolve around six main components: (i) the duty to adopt an appropriate and effective regulatory framework, (ii) the obligation to prevent violations of
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