In July 2012, the Inter-American Court of Human Rights (the “Court”) came out with its decision in Sarayaku v. Ecuador (“Sarayaku”)[1], finding Ecuador liable for breaching the indigenous peoples’ right to free, prior and informed consultation in accordance with international standards. It highlighted that the right to consultation is closely related to indigenous rights to communal property and cultural identity. The Court also found that Ecuador failed to effectively protect the Sarayaku Peoples’ right to life and physical integrity.

The Court analyzed the right to free, prior and informed consultation based on the obligations and rights that are set out in the American Convention on Human Rights (the “Convention”), and that are expressly recognized in the International Labour Organization’s Indigenous and Tribal Peoples Convention No. 169 (“ILO 169”). The Court stated that this obligation is to be considered a general principle of international law. The decision confirms that states must ensure a meaningful consultation process prior to indigenous peoples’ rights being affected. It provides guidance as to what the obligation of free, prior and informed consultation entails and, interestingly, does not discuss the issue of consent.

The Inter-American Court of Human Rights

In 1948, twenty Latin American countries and the United States ratified the Charter of the Organization of American States (the “OAS”) that established a new regional organization focused on the region’s economic development, conflict resolution and respect to human rights. Canada joined the OAS by ratifying the OAS Charter in 1989. The human rights system of the OAS is called the Inter-American System for the protection of human rights, and it relies on the American Declaration of the Rights and Duties of Man (the “American Declaration”), the Convention and other international legal instruments.

The Convention sets out the rights to be guaranteed by State Parties to the Convention and also grants individuals the right to bring alleged violations by States Parties to the Convention before the Inter-American Commission on Human Rights (the “Commission”). Human rights allegations can escalate to the second body of the Inter-American System, the Court[2]. The Court’s jurisdiction over contentious cases is limited to two conditions: one, that states ratify the Convention[3], and second, that states recognize the jurisdiction of the Court on all matters relating to the interpretation and application of the Convention.

Though Canada and the United States are members of the OAS, they are not parties to the Convention and have not attorned to the jurisdiction the Court. [4]As such, the Court’s decisions are not legally binding on Canada or the United States.

Background

On July 26, 1996, the State Petroleum Company of Ecuador, (PETROECUADOR) entered into a contract with Argentina’s Compañía General de Combustibles’ (“CGC”)[5] for exploration and exploitation of crude oil in the “Bloque 23”, an area of 20,000 hectares of land in the Amazon region, 65% to which the Sarayaku Indigenous Peoples have either a legal or ancestral claim.[6] Pursuant to the contract, there was a 20 year exploration phase that was subject to extension. CGC’s contractual obligations included the production of an Environmental Impact Study (“EIS”) and the need for CGC to make efforts towards the preservation of the existing ecological balance in the area of exploitation.

In 1998, two years after entering into the contract with CGC, Ecuador ratified ILO 169[7] and the new Ecuadorian Constitution entered into force. Both instruments place an obligation on the State to consult with indigenous peoples.[8]

In 2002, the State approved an updated EIS and CGC commenced its seismic survey activities in July of that same year.[9] As part of its activities, the CGC opened seismic trails; enabled multiple heliports; destroyed caves, waterfalls, and underground rivers used as drinking water sources for the Sarayaku People;[10] and destroyed at least one site of particular spiritual importance to the Sarayaku People. CGC also planted, both superficially and deeper subterraneanly, more than 1400 kg of pentolite explosives throughout the Sarayaku People’s traditional lands. At the time of the judgment, many of the explosives remained planted in the Sarayaku territory.[11]

The Decision and Remedy

The Court found Ecuador liable for breaching the Sarayaku People’s right to communal property and cultural identity for failing to satisfy its obligation to consult with them. The Sarayaku People were not consulted at any stage of the execution of CGC’s oil exploration, which resulted in damage to the environment and to the community’s sacred lands.[12] The Court also found that Ecuador breached the Sarayaku People’s right to life by allowing the planting of explosives in their territory which created a permanent situation of risk and threat to their lives and safety.

The Court awarded the Sarayaku People a total of $1,340,000 in damages. The Court also ordered the removal of the subsurface explosives according to means and methods determined through a process of free, prior and informed consultation. The Court further ordered the proper consultation of the Sarayaku People in the future, and the creation of adequate legislation for the practical implementation of proper free, prior and informed consultation of indigenous peoples in Ecuador.

Commentary

States Cannot Contract Out of Consultation

The decision starts by noting how the right to property established in article 21 of the Convention must be interpreted in accordance with the rest of the Convention, especially in respect to article 1.1, which establishes the obligation to respect rights and freedoms set out in the Convention, and article 2, which sets out the obligation of states to adopt legislation or measures to give effect to the rights and freedoms set out in the Convention. By viewing these articles together, the right to property in article 21 includes a right to the full and fair use of the territories that have been traditionally used and occupied by indigenous peoples, which must be actively protected through the proper consultation of indigenous peoples. These rights and obligations are further recognized in other international instruments ratified by Ecuador and its national legislation.[13] Therefore, in this case, the Court concluded that even though ILO 169 was ratified after the contract with CGC was signed in 1996, Ecuador was already bound to guarantee the Sarayaku People the right to consultation.

The decision recognizes that ILO 169 does not apply retroactively, but does apply to any decision or action that may impact indigenous peoples even if the decision or action has arisen from a contract that was signed before the ILO Convention entered into force.[14] In this particular case, the Court noted that it was not until 2002 that Ecuador approved an updated EIS and that CGC commenced its seismic survey activities. Because ILO 169 places an obligation on states to guarantee the right to consultation throughout the different stages of a contract even if the contract was signed prior to its entry into force, Ecuador was bound by ILO 169 with respect to any activities arising out of the contract with CGC that would affect the Sarayaku People, including the 2002 EIS.

The Obligation to Consult: a principle of international law

The Court concluded that states’ obligation to guarantee proper consultation stems not only from express recognition of this right in the ILO 169, but is founded on indigenous peoples’ rights to their own culture and cultural identity which are to be guaranteed in a democratic, pluralistic and multicultural society.[15]

The decision makes reference to developments in countries that have ratified the ILO Convention as well as Canada, the United States and New Zealand, which have not ratified the ILO Convention but nonetheless have recognized the obligation to consult. In addition to the ILO 169 the obligation to consult is recognized in various complementary international instruments, such as the United Nations Declaration on the Rights of Indigenous Peoples.[16] Finally, the Court established that, even where a state has not ratified ILO 169 or recognized an obligation to consult, the state has an obligation to conduct free, prior and informed consultation given that this obligation constitutes a general principle of international law:

…Other courts of countries that have not ratified ILO Convention No. 169 have also referred to the need to carry out prior consultations with indigenous, native or tribal communities, regarding any administrative or legislative measure that directly affects them, as well as on the exploitation of natural resources in their territory. Thus, similar developments in case law are evident in the high courts of countries within the region, such as Canada or the United States of America, or of those outside the region such as New Zealand. In other words, the obligation to consult, in addition to being a conventional standard, is also a general principle of International Law.[17]

Its worth noting that the Court labelled the obligation to consult a general principle of international law[18] rather than customary international law. Therefore the obligation to consult is recognized as a principle common to many major legal systems which may provide guidance in examining and enforcing other rights. Therefore, in the decision, the Court referred to the domestic legislation and jurisprudence of various states to delineate the content of the obligation to consult established in ILO 169, the Ecuadorian Constitution and other Ecuadorian legislation.

Adequate Consultation

The Court confirmed that states must guarantee proper consultation and participation in all stages of planning and development of a project that may affect indigenous territory and not only when the need arises to obtain the approval of the community. The requirement for prior consultation implies that it must be done before taking the measures that are likely to affect the community, including legislative actions, and that the community should be involved as early as possible in the process.[19]

The Court confirmed that states have the duty to actively consult with the indigenous community in good faith, through culturally appropriate procedures, in accordance with their own traditions.[20]The parties should establish a dialogue based on principles of mutual trust and respect with the aim of reaching consensus amongst them.[21] Consultation must also be informed, so that the indigenous community is aware of the potential risks of the project, including environmental and health risks.[22]

The Court further stated that the obligation to consult belongs to the State; the obligation cannot be delegated to third parties.[23]

In regard to the EIS, the Court reiterated its previous finding in Saramaka v. Suriname[24], in which the Court held that states are obliged to monitor EISs in accordance with their duty to consult indigenous peoples:

…the Court has established that Environmental Impact Studies must be carried out in conformity with international standards and best practices, must respect the indigenous peoples’ traditions and culture and be completed prior to the granting of the concession, given that one of the purposes for requiring such studies is to guarantee the right of indigenous people to be informed about all proposed projects in the territory. Therefore, the State’s obligation to supervise the Environmental Impact Assessment is consistent with its duty to guarantee the effective participation of indigenous people in the process of granting concessions. Furthermore, the Court considers that one of the points that should be addressed by the environmental and social impact assessment is the cumulative impact of existing projects and proposed projects.[25]

In this case, the EIS was insufficient because it was made without the participation of the Sarayaku People, was made by a private company contracted by CGC without being subject to strict State oversight, and did not take into account the impact the project could have on the social, spiritual and cultural activities of the Sarayaku People.[26]

When is Consent Required?

In this decision, the Court speaks strictly in terms of consultation rather than consent, despite the Court’s finding that Ecuador had failed to protect to the Sarayaku Peoples’ right to life and physical integrity. It is interesting that the Court did not consider whether this situation was sufficient to require consent from the Sarayaku people, in light of the Court’s finding that “the State’s non-compliance with its obligation to guarantee the Sarayaku Community’s right to communal property by allowing explosives to be placed on its territory, has created a permanent situation of risk and threat to the lives and physical integrity of its members.”[27]

Previously, in the Saramaka v. Suriname case, the Court stated that ‘large-scale’ projects that have a ‘major impact’ on traditional indigenous territories require the consent of the indigenous peoples[28]:

137. …[I]n addition to the consultation that is always required when planning development or investment projects within traditional Saramaka territory, the safeguard of effective participation that is necessary when dealing with major development or investment plans that may have a profound impact on the property rights of the members of the Saramaka people to a large part of their territory must be understood to additionally require the free, prior, and informed consent of the Saramakas, in accordance with their traditions and customs. The Court considers that the difference between “consultation” and “consent” in this context requires further analysis.[29]

In Saramaka v. Suriname, the Commission’s application to the Court included reference to the displacement of the Saramaka People due to flooding from the construction of the hydroelectric dam.[30]However the Court considered any mention of the effects of the construction of the dam as strictly contextual background of the history of the controversy and did not make any finding of fact regarding this issue as it fell “outside the scope of the controversy as framed by the Commission in its application.”[31] Despite this, it was clear that the Court in that case considered that the aggregate impact on the Saramaka was akin to a relocation, thereby triggering an obligation to seek consent.

The obligation to seek consent, as opposed to consultation, is limited in ILO 169 to occasions of relocation. Since relocation was not at issue for the Sarayaku People despite the damage to their traditional lands and the risk to life and physical integrity, the Court may not have considered the impact of the project to be sufficiently profound to meet the threshold discussed in Saramaka v. Suriname.

Further guidance is still required from the Court to understand which situations will require the consent of indigenous communities based on the “major-impact” threshold akin to relocation.

Conclusion

The importance of the Sarayaku decision lies on its analysis of the obligation to guarantee proper consultation and on how the Court determined that this right is based not only on ILO 169 but stems from other international instruments, national legislation and on the foundations of democratic states. It does not focus on consent, but clearly sets out the elements of a proper consultation process.

Despite the Sarayaku Peoples’ opposition to CGC, the Court recognizes that it cannot make any statements regarding any other oil exploration endeavours that could take place in this area. However, the case sets a clear precedent that adequate and effective free, prior and informed consultation with the Sarayaku People in accordance with international standards is required for any current and future explorations.

As previously mentioned, Canada is not bound by the Court’s decisions given that it has not ratified the Convention or recognized the Court’s jurisdiction. Nevertheless, Canada has developed the duty to consult through its Constitution and jurisprudence. State obligations of free, prior and informed consultation, as discussed by the Court in Sarayaku are consistent with the Canadian duty to consult. In Canada, however, this duty exists along a spectrum depending on the strength of the case supporting the existence of the Aboriginal Right or title and the seriousness of the potential adverse effects on those rights.