Exploitation of natural resources and protection of communal property over indigenous peoples’ traditional lands and territories : Jurisprudential approaches

The Inter-American Court of Human Rights (I-ACtHR) has developed during the last decade a remarkable jurisprudence for the protection of the right to communal property of indigenous and tribal communities over their possessed ancestral lands and natural resources traditionally used, in order to guarantee their cultural and economic survival in the Americas. However, in accordance with the different national legal system, States could retain the ownership and the right to exploitation over natural resources not traditionally used by indigenous peoples, such as mineral or sub-surface resources, even if they are found on and within traditional indigenous land and territories. For this reason, this paper critically analyses the legal regime applicable for the protection of the right to traditional communal property of indigenous and tribal peoples in the Americas and– most in particular – the safeguards introduced by the I-ACtHR in cases of concessions granted for the exploration and exploitation of the natural resources found in their territories. These safeguards are intended to establish a fair balance between the States’ interest on the exploitation of natural resources and economic development and the preservation of the special connection that indigenous peoples have with their land and resources, essential for their survival. Among these safeguards, especial attention is given to the effective participation and consultation of the involved communities; the obligation to share reasonable benefits with affected communities; and the
elaboration of a prior environmental and social impact assessment of any development investment, exploration or extraction plan that take place within their traditional lands and territories. This innovative Inter-American jurisprudence has not only enhanced the protection of fundamental rights of millions of people in the Americas, but also restored dignity and visibility to one of the most disenfranchised and vulnerable sectors of the population in the continent. Therefore, from a comparative point of view, it could perhaps be seen as an inspirational model for other regions in the world regarding how to accommodate different – and potentially conflicted – interests at stake, in particular between States’ authorities and local populations, based on a human rights systemic and evolutionary legal interpretation.

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