First Nations leader sent Idle No More plans to government: emails

By Laura Stone, Global News, April 18, 2013

Terrance Nelson during his speech seeking election as national chief of AFN, June 2012.

Terrance Nelson during his speech seeking election as national chief of AFN, June 2012.

The federal government didn’t have to go far to find out what First Nations leaders were planning during last winter’s Idle No More movement.

The plans were sent directly to the government inbox.

Terrance Nelson,  the former chief for Roseau River First Nation in Manitoba, forwarded private emails to the Department of Aboriginal Affairs – meant as “a warning to Canada not to get stupid,” he told Global News in an interview.

The group of five emails, all forwarded on Dec. 30, 2012 and released recently to Global under Access to Information law, contain suggested strategies from some of the most outspoken voices of the Idle No More movement. No responses from the department were included in the released documents.

An email from Derek Nepinak, Grand Chief at the Assembly of Manitoba Chiefs, warned that Idle No More “will escalate to various levels of violence and confrontation” and that chiefs should be “pre-emptive on the U.S. side.”

“We have the power to shut down the economy, including the export economies into the U.S.,” he wrote.

Nepinak wrote he was planning a trip to Washington in the coming weeks “to meet with various elected officials and potentially member states who will accept us at the United Nations.”

"Grand Chief" Derek Nepinak of the Assembly of Manitoba Chiefs, Idle No More Rally in Winnipeg, Dec. 10, 2012.

“Grand Chief” Derek Nepinak of the Assembly of Manitoba Chiefs, Idle No More Rally in Winnipeg, Dec. 10, 2012.

“I will work with my lobbyist to begin an early itinerary, however Im [sic] hopeful that by asking the right people to participate, we might even secure a high level meeting with a top member of the Obama administration, if not the president himself.”

He also wrote about some of the potential consequences of the “Harper Regime” – including First Nations jeopardizing major energy projects such as the Keystone XL, the Northern Gateway pipeline, and hydro exports from Manitoba.

“I believe that the Americans deserve an explanation of why these things may come to pass, including the role that First Nations continue to play in the economic life of Canada and its trade partners.”

Nepinak has been one of the most outspoken critics of the current aboriginal leadership and Assembly of First Nations National Chief Shawn Atleo. He boycotted the Jan. 11 meeting with Prime Minister Stephen Harper and recently proposed a National Treaty Alliance as an alternative to the AFN’s own treaty discussions before a follow-up meeting with the prime minister.

In an interview, Nepinak said he didn’t know Nelson had forwarded his messages. He said he sent them in “a very heightened emotional state of mind,” with many chiefs concerned about the health of Attawapiskat Chief Theresa Spence, who was on a liquid hunger strike since Dec. 11.

“There was a lot of really difficult kinds of feelings, a lot of hurt feelings and emotion that was folded into the discussions at that time,” he said.

“You’ll see things have cooled down since, but it is disappointing that information would be shared like that, particularly when you feel you have a level of trust with certain people.”

He added his comments about being “pre-emptive” weren’t inciting violence but referred to giving the U.S. a head’s up about potential disruption caused by the protests.

“My effort has always been to ensure that there is no violence, but to raise the profile of the issues and the concerns and to raise the economic issues that are at stake here,” he said.

“Pre-emptive does not mean, ‘Let’s engage in violent action.’”

The emails also contain messages from Isadore Day,  chief of the Serpent River First Nation in Ontario, and Ann Gladue-Buffalo, then-chief of Alberta’s Confederacy of Treaty Six Nations. Neither responded or returned calls for interview requests.

Gladue-Buffalo’s email contains details about plans for a National Day of Action on Jan. 16 .

“It was agreed that in the short-term immediate pressure needs to be stepped up because Chief Spence’s health is at risk,” she wrote.

“Call, tweet, MP’s, Senators, and organize and participate in direct actions leading up to a National Day of Action which impact the economy, industry and government. Target Main economic and energy corridors such as power sources, railways and highways.”

The note suggested regional coordination and a public relations strategy that extended to international contacts. It also points to ways in which chiefs were attempting to put pressure on the prime minister to meet with Spence.

“Industry controls PM and Industry can make the PM meet with Chief Spence. Chiefs should also send letters to industry in their territories advising of action measures. Ie. Blockades of major roadways, rail lines, rally’s at MP’s office, letter campaigns, twitter bombs.”

It includes a list of critical dates and strategies to support Spence or protest federal legislation.

In an interview, Nelson admitted to forwarding all the emails, except the one from Gladue-Buffalo. A spokeswoman for aboriginal affairs later confirmed he had sent all the emails.

Nelson said he is regularly in touch with the aboriginal affairs department.

“We just provided a warning to Canada not to get stupid and that’s one of the reasons we provide this information to Canada, making sure that they know that we know,” he said.

“That’s critically important because a lot of the First Nations people don’t have that understanding of how much power we have.”

Nelson added that it’s “somewhat naive” for First Nations people to think the government doesn’t already know about their activities.

“I know I’m monitored. Instead of trying to hide, or trying to do covert activities, I just say ‘Ok, here’s what we’re doing.’”

http://globalnews.ca/news/493452/first-nations-leader-sent-idle-no-more-emails-to-government/

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Posted on April 19, 2013, in Uncategorized and tagged , , , . Bookmark the permalink. 3 Comments.

  1. Chief Txsuu, Clifford C.W. Morgan, member of Gitwangak Band, B.C.

    In our area, in British Columbia, the Indian Affairs of Canada allowed the treaty society to become a monster corporation, and still providing $millions to them, the treaty society was only supposed to become a negotiating team, to make things better for our indian communities, in Gitxsan Natiion. Today, there is a bitter division amongst our people, more like a civic war, our aboriginal system is shattered, few handful of wing chiefs and head chiefs are getting $millions a year since 1997, and there has been no treaty, and the $millions does not reach the communities. The B.C. Treaty Commission who dishes out the money to these treaty society group, does not listen to the 95% of the people in villages. Only the few are getting richer and richer, and the Federal and Provincial government is allowing this. Whenever a mining company, a fracking company comes in our area, the Federal and Provincial government knows who to send them to so that they can sign agreements with them. These mining and fracking companies are the main destroyers of the land, worse than Enbridge as there are many of them. The wild game are dying, sickly, and soon, our streams and fresh waters will be so contaminated, where will our people,some 30,000 or so will go. To the cities? They will not have enough income to rent a $1200/mo. apartment, and a one bedroom that will accommodate some 10 or so family members. Utilities are expensive, costs about $300/mo. in cities. The cost of food is ever on the rise, a smail family will spend $500.00 on groceries, as there will be no wild game to depend on, and the salmon will be destroyed.

    Chief Txsuu, Clifford C.W. Morgan
    Member of Gitwangak Band, within Gitxsan Nation
    Author, Elder Chief

  2. From the Blog. INDIGENOUS AND TRIBAL PEOPLES’ RIGHTS OVER THEIR ANCESTRAL LANDS AND NATURAL RESOURCES Norms and Jurisprudence of the Inter-American Human Rights System VIII. INDIGENOUS AND TRIBAL PEOPLES’ RIGHTS OVER NATURAL RESOURCES 179. Many indigenous and tribal peoples live in areas rich in living and non-living resources, including forests that contain abundant biodiversity, water, and minerals. Historically, the desire of non-indigenous society for such resources has resulted in the removal, decimation or extermination of many indigenous communities. Today, the survival and integrity of the Hemisphere’s remaining indigenous and tribal peoples requires recognition of their rights to the resources found on their lands and territories on which they depend for their economic, spiritual, cultural, and physical well-being. 180. In several countries of the region, constitutional or legislative provisions assign ownership of sub-surface mineral and water rights to the State. The Inter-American human rights system does not preclude this type of measure; it is legitimate, in principle, for States to formally reserve for themselves the resources of the subsoil and water. This does not imply, however, that indigenous or tribal peoples do not have rights that must be respected in relation to the process of mineral exploration and extraction, nor does it imply that State authorities have freedom to dispose of said resources at their discretion. On the contrary, Inter-American jurisprudence has identified rights of indigenous and tribal peoples that States must respect and protect when they plan to extract subsoil resources or exploit water resources; such rights include the right to a safe and healthy environment, the right to prior consultation and, in some cases, informed consent, the right to participation in the benefits of the project, and the right of access to justice and reparation. In the following sections, their content and modes of application are explained in detail. A. General Considerations 181. Indigenous and tribal peoples have property rights over the natural resources which are present in their territories. The Inter-American human rights system’s jurisprudence on indigenous peoples’ right to communal property has explicitly incorporated, within the material scope of this right, the natural resources traditionally used by indigenous peoples and linked to their cultures, including uses which are both strictly material and other uses of a spiritual or cultural character. For the Inter-American human rights system, this is a necessary consequence of the right to territorial property: from the right to use and enjoy territory in accordance with indigenous and tribal peoples’ traditions and customs, the right to the natural resources which are both in and within the ancestral lands is a necessary derivation,[488] including the specific rights of indigenous peoples over the natural resources of the subsoil which will be explained in detail below. For the Inter-American Court, indigenous peoples’ members’ “right to use and enjoy their traditionally owned lands necessarily implies a similar right with regards to the natural resources that are necessary for their survival”.[489] In general terms, by virtue of their right to property, indigenous and tribal peoples and their members have the right “to use and enjoy the natural resources that lie on and within their traditionally owned territory”.[490] 182. The property rights of indigenous and tribal peoples thus extend to the natural resources which are present in their territories, resources traditionally used and necessary for the survival, development and continuation of the peoples’ way of life.[491] For the Inter-American human rights system, resource rights are a necessary consequence of the right to territorial property.[492] According to the Inter-American Court, “members of tribal and indigenous communities have the right to own the natural resources they have traditionally used within their territory for the same reasons that they have a right to own the land they have traditionally used and occupied for centuries. Without them, the very physical and cultural survival of such peoples is at stake.[493]”[494] Hence the need to protect indigenous and tribal peoples’ rights over the natural resources they have traditionally used; that is, “the aim and purpose of the special measures required on behalf of the members of indigenous and tribal communities is to guarantee that they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected by States.”[495] States must take into consideration that “the culture of the members of the indigenous communities directly relates to a specific way of being, seeing, and acting in the world, developed on the basis of their close relationship with their traditional territories and the resources therein, not only because they are their main means of subsistence, but also because they are part of their worldview (…), and therefore, of their cultural identity.”[496] This corresponds to the notion of indigenous territoriality elaborated by ILO Convention No. 169 and the United Nations Declaration on the Rights of Indigenous Peoples, by which indigenous rights to property extend to the natural resources that indigenous peoples use as part of their traditional economies or which have cultural, spiritual or ceremonial uses. 183. As explained by the Inter-American Court, “due to the inextricable connection members of indigenous and tribal peoples have with their territory, the protection of their right to property over such territory, in accordance with Article 21 of the Convention, is necessary to guarantee their very survival. Accordingly, the right to use and enjoy their territory would be meaningless in the context of indigenous and tribal communities if said right were not connected to the natural resources that lie on and within the land. That is, the demand for collective land ownership by members of indigenous and tribal peoples derives from the need to ensure the security and permanence of their control and use of the natural resources, which in turn maintains their very way of life. This connectedness between the territory and the natural resources necessary for their physical and cultural survival is precisely what needs to be protected under Article 21 of the Convention in order to guarantee the members of indigenous and tribal communities’ right to the use and enjoyment of their property. From this analysis, it follows that the natural resources found on and within indigenous and tribal people’s territories that are protected under Article 21 are those natural resources traditionally used and necessary for the very survival, development and continuation of such people’s way of life.”[497] The Court has identified in concrete cases the natural resources present within ancestral territory that are important to the traditional way of life, and therefore protected by the right to property.[498] 184. In connection with this, the cultural rights of an indigenous people may encompass traditional activities related to natural resources, such as fishing or hunting.[499] The IACHR has also noted that among indigenous communities, the life of their members “fundamentally depends” on the subsistence activities – agriculture, hunting, fishing, gathering – that they carry out in their territories,[500] and that therefore, an indigenous community’s “relations to its land and resources are protected by other rights set forth in the American Convention, such as the right to life, honor, and dignity, freedom of conscience and religion, freedom of association, rights of the family, and freedom of movement and residence.”[501] The preservation of the distinctive connection between indigenous and tribal peoples and the natural resources they have traditionally used and are linked to their culture “is fundamental to the effective realization of the human rights of indigenous peoples more generally and therefore warrants special measures of protection.”[502] 185. Insofar as indigenous and tribal peoples have property rights over the natural resources present in their ancestral territories, States must adopt effective measures to secure those rights,[503] measures which must be adequate for their full guarantee, in accordance with the traditional use and occupation patterns. Recognition of indigenous customary law by State authorities in general, and in particular by the Courts, is therefore necessary for indigenous and tribal peoples to be able to claim their rights over natural resources, and for recognition of their ancestral possession.[504] The State’s failure to adopt such measures violates articles 1 and 2 of the American Convention.[505] 186. As with the right to territorial property in general, indigenous and tribal peoples’ right to property over the natural resources may not be legally extinguished or altered by State authorities without the peoples’ full and informed consultation and consent, or without complying with the general requirements established for cases of expropriation,[506] and with the other legal safeguards of indigenous territorial property. Compliance with the requirements for carrying out expropriations is one of the elements that must be applied whenever the State decides to evaluate undertaking development or investment plans or projects, or granting concessions for the exploration or exploitation of natural resources in indigenous territories, as explained below. 187. Rights over natural resources are not conditioned on the existence of formal title to property, nor to the finalization of the delimitation or demarcation procedures, but instead “exist even without State actions which specify them,”[507] given that such peoples have “communal property rights to land and natural resources based on traditional patterns of use and occupation of ancestral territory.”[508] This entails the application of the natural resource property safeguards to the communities that lack a real property title. States violate indigenous peoples’ right to property when they grant concessions for the exploration or exploitation of the natural resources present in ancestral territories which have not been titled, delimited or demarcated.[509] Consequently, States are bound, by virtue of Article XXIII of the American Declaration of the Rights and Duties of Man, to abstain from “granting logging and oil concessions to third parties to utilize the property and resources that could fall within the lands which must be delimited, demarcated and titled or otherwise clarified and protected, in the absence of effective consultations with and the informed consent of the [respective] people;”[510] an identical obligation is imposed by Article 21 of the American Convention.[511] 188. Indeed, one of the problems which has recurred in the individual case mechanism before the organs of the Inter-American system is that of indigenous communities who, lacking a real title to property over their traditional lands and territories, are adversely affected by the implementation of plans for investment or natural resource development on their ancestral lands and territories. As already indicated, the Inter-American system’s jurisprudence deems the procedures for delimitation, demarcation and granting of title over indigenous lands a merely formal recognition of pre-existing property rights for purposes of guaranteeing their effective protection from third parties. Given that indigenous property rights pre-exist their formalization through the State mechanisms for granting of title, the implementation of plans for the investment or development of natural resources which are likely to directly or indirectly affect said land and resources must comply with the procedural and substantive safeguards respecting property rights. Indigenous and tribal peoples also have the right to be protected by the State from conflicts with third parties over projects for the exploration and exploitation of natural resources in their ancestral territories, particularly when such conflicts have been caused by the delay or absence of territorial titling and demarcation.[512] 189. As discussed in detail below, States have the obligation of attending indigenous and tribal peoples’ land claims, through the granting of title or other mechanisms to recognize communal property, before authorizing any development or investment plan which can affect these peoples’ property rights over natural resources. In the Saramaka case, the Inter-American Court ordered the State to delimit, demarcate and grant title over the people’s traditional territory before authorizing new plans for investment or development of natural resources which can affect such territory.[513] The IACHR has also held that States are obliged to “abstain from any acts that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographic area occupied and used by the [respective] people,”[514] until such time as title is granted. The IACHR has also held that failure to adopt State measures to guarantee indigenous communities’ rights over natural resources in accordance with their traditional use and occupation patterns is a violation of Articles 1.1 and 2 of the American Convention on Human Rights.[515] Granting concessions for the exploration or exploitation of natural resources in indigenous territories that have not been titled, demarcated or protected by the State, without complying with the requirements of prior consultation and other applicable safeguards, violates Articles 1 and 2 of the American Convention on Human Rights.[516] B. The Right to Environmental Integrity 190. Although neither the American Declaration of the Rights and Duties of Man, nor the American Convention on Human Rights, contain express references to the protection of the environment, several fundamental rights require, as a necessary precondition for their enjoyment, a minimum environmental quality, and are profoundly affected by the degradation of natural resources. The IACHR has emphasized that there is a direct relationship between the physical environment in which persons live, and the rights to life, security and physical integrity: “The realization of the right to life, and to physical security and integrity is necessarily related to and in some ways dependent upon one’s physical environment. Accordingly, where environmental contamination and degradation pose a persistent threat to human life and health, the foregoing rights are implicated.”[517] 191. Both the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights reflect a priority concern with the preservation of individual health and welfare, legal interests which are protected by the interrelation between the rights to life, security of person, physical, psychological and moral integrity, and health,[518] and thereby refer to the right to a healthy environment. 192. As explained by the IACHR,[519] the critical link between human beings’ subsistence and the environment has been recognized in other international treaties and instruments that bind several States of the Americas, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights; the Amazon Cooperation Treaty; the World Charter for Nature; the Convention for the Protection of Flora, Fauna and Natural Scenic Beauties of America; the Rio Declaration on Environment and Development; and the Convention on Biological Diversity. Both ILO Convention No. 169 and the United Nations Declaration on the Rights of Indigenous Peoples incorporate specific provisions on the protection of the environment of indigenous territories.[520] At the Inter-American Level, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), which has been signed or ratified by several countries in the region[521] and entered into force in November 1999, states in Article 11, on the right to a healthy environment: “1. Everyone shall have the right to live in a healthy environment and to have access to basic public services. // 2. The States Parties shall promote the protection, preservation, and improvement of the environment.” 193. These provisions are directly relevant for the interpretation of the Inter-American human rights instruments, by virtue of the evolutionary and systematic interpretive approach which applies to the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights. Thus, both the IACHR and the Inter-American Court have articulated a set of State obligations related to the preservation of an environmental quality which allows for the enjoyment of human rights. State members of the OAS must prevent the degradation of the environment in order to comply with their human rights obligations in the framework of the Inter-American system. 194. In relation to indigenous and tribal peoples, the protection of the natural resources that are present in ancestral territories, and of such territories’ environmental integrity, is necessary to secure certain fundamental rights of their members, such as life, dignity, personal integrity, health, property, and privacy or information. These rights are directly affected whenever pollution, deforestation, contamination of waters, or other significant environmental damage occurs in ancestral territories. This implies that the State must undertake preventive and positive action aimed at guaranteeing an environment that does not compromise indigenous persons’ capacity to exercise their most basic human rights. In this line, the IACHR has explained that the right to life protected by both the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights “is not (…) limited to protection against arbitrary killing. States Parties are required to take certain positive measures to safeguard life and physical integrity. Severe environmental pollution may pose a threat to human life and health, and in the appropriate case give rise to an obligation on the part of a state to take reasonable measures to prevent such risk, or the necessary measures to respond when persons have suffered injury.”[522] 195. The link between the protection of the environment and respect for human dignity has also been emphasized by the IACHR: “The American Convention on Human Rights is premised on the principle that rights inhere in the individual simply by virtue of being human. Respect for the inherent dignity of the person is the principle which underlies the fundamental protections of the right to life and to preservation of physical well-being. Conditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be respected as a human being.”[523] The IACHR has also underlined the direct link between the preservation of environmental integrity and access to livelihood sources; citing the World Charter for Nature, it has held that “mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients.”[524] 196. The IACHR has further recognized the link between the protection of the environment and the right to health. In 1983, in its report on the situation of human rights in Cuba, the IACHR recommended that the State adopt specific measures to protect the environment in order to comply with its obligations appurtenant to the right to health, explaining that a healthy environment is essential for a healthy population, and noting that factors such as water provision, basic sanitation and hygiene services, and waste management bear an important impact in this regard.[525] 197. Effective protection of the natural resources present in indigenous and tribal territories requires that States guarantee their members the exercise of certain human rights of a procedural nature, most importantly, access to information, participation in decision-making, and access to justice. As explained by the IACHR, in contexts of harm or threat to the environment, “protection of the right to life and physical integrity may best be advanced through measures to support and enhance the ability of individuals to safeguard and vindicate those rights. The quest to guard against environmental conditions which threaten human health requires that individuals have access to: information, participation in relevant decision-making processes, and judicial recourse.”[526] From this perspective, the guarantee and exercise of the human rights to participation, information and access to justice constitute necessary means to attain the ultimate objective of environmental preservation. As explained in the following sections, the scope of each one of these three rights in relation to the protection of the natural resources of indigenous or tribal territories has been developed in detail by Inter-American jurisprudence, in such a way that they constitute, in themselves, mandatory requirements for States. C. The Right to Effective Implementation of the Existing Legal Standards 198. Authorities have the duty, as part of the rule of law, to implement the national and international environmental protection standards that the State has enacted or accepted; this positive obligation of States is part of their general obligation to implement and enforce their own laws in order to protect the human rights of all persons, including indigenous or tribal peoples and their members. States must adopt measures to ensure that recognition of indigenous and tribal peoples’ territorial rights in their constitutions and in the international treaties to which they are parties, is incorporated in a cross-cutting manner in their domestic law, including in relation to development projects.[527] At the same time they have the obligation to secure the effective implementation and enforcement of the provisions they adopt, and of the international human rights law provisions that bind them. 199. In its country reports, the IACHR has celebrated some legal advances in the constitutional recognition and legislative development of the right to prior consultation, in the process of socio-environmental monitoring of extractive activities, and in the sustainable development of industries such as the oil and gas sector. In this regard, it has expressed that it “hopes to obtain information on the implementation mechanisms for this legal framework and on their results in effectively safeguarding the right to prior consultation.”[528] 200. As part of the generic obligation to implement and enforce legal measures, States must ensure compliance with their environmental and criminal law and regulations in relation to projects for the exploration and exploitation of natural resources in indigenous and tribal peoples’ territories, and impose the sanctions foreseen in cases of non-compliance.[529] The IACHR has explained that, in the context of environmental pollution resulting from extractive activities, “the right to life and the protection of the physical integrity of the individual are norms of an imperative nature. Article 2 of the American Convention requires that where these rights are not adequately ensured through legislative and other means, the State must take the necessary corrective measures. Where the right to life, to health and to live in a healthy environment is already protected by law, the Convention requires that the law be effectively applied and enforced.”[530] 201. Compliance with the State duty to implement and enforce existing environmental standards is required in order for extractive projects not to compromise the exercise of human rights: “The Commission recognizes that the right to development implies that each state has the freedom to exploit its natural resources, including through the granting of concessions and acceptance of international investment. However, the Commission considers that the absence of regulation, inappropriate regulation, or a lack of supervision in the application of extant norms may create serious problems with respect to the environment which translate into violations of human rights protected by the American Convention.”[531] An integral part of the process of effective enforcement of the law in this context, is for the State “to take the measures necessary to ensure that the acts of its agents (…) conform to its domestic and Inter-American legal obligations.”[532] 202. Likewise, the IACHR has underscored that States who ratify ILO Convention No. 169 must guarantee its cross-cutting incorporation into the legislation that regulates the entire process of design, concession and implementation of projects for the exploration and exploitation of natural resources in indigenous territories; and at the same time must adopt measures to guarantee the effective application of such legislation, taking into account that the lack of regulatory development is not an excuse for failure to comply with the application of Convention No. 169.[533] States must apply adequate mechanisms to follow-up and control compliance, by the authorities, with the rights and guarantees they agreed to respect upon ratification of Convention No. 169.[534] 203. The State duty to apply the environmental protection provisions in force gains special importance vis-a-vis non-State actors whose conduct that is harmful for natural resources. State authorities have clear international obligations to enforce their own standards and regulations, non-compliance with which may incur their international responsibility. In practice, States have resorted to different instruments, including the establishment of quality, production or emissions standards; licensing or regulation of dangerous activities; the provision of economic incentives or disincentives; the sanction of particularly harmful activities through criminal law; or the creation of private liability regimes to disincentivate and compensate environmental damage.[535] Whichever options are chosen, enforcement of the environmental protection measures in relation to private parties, in particular of extractive companies and industries, is required to avoid the State’s international responsibility for violating the human rights of indigenous or tribal populations affected by environmentally destructive activities.[536] D. State Obligations in the Context of Development and Investment Projects and Extractive Concessions over Natural Resources that Affect Ancestral Territories 204. The States of the Americas, and the populations that compose them, have the right to development. Such right to development “implies that each State has the freedom to exploit its natural resources, including through the granting of concessions and acceptance of international investment,”[537] but development must necessarily be compatible with human rights, and specifically with the rights of indigenous and tribal peoples and their members. There is no development as such without full respect for human rights. This imposes mandatory limitations and duties on State authorities. In particular, development must be managed in a sustainable manner, which requires that States ensure protection of the environment, and specifically of the environment of indigenous and tribal ancestral territories. As the IACHR has explained, “the norms of the Inter-American human rights system neither prevent nor discourage development; rather, they require that development take place under conditions that respect and ensure the human rights of the individuals affected. As set forth in the Declaration of Principles of the Summit of the Americas: ‘Social progress and economic prosperity can be sustained only if our people live in a healthy environment and our ecosystems and natural resources are managed carefully and responsibly.’”[538] 1. Impact of Development and Investment Plans or Projects, and of Extractive Concessions that Affect the Environment 205. Infrastructure or development mega-projects, such as roads, canals, dams, ports or the like, as well as concessions for the exploration or exploitation of natural resources in ancestral territories, may affect indigenous populations with particularly serious consequences, given that they imperil their territories and the ecosystems within, for which reason they represent a mortal danger to their survival as peoples, especially in cases where the ecological fragility of their territories coincides with demographic weakness.[539] The impact of these activities upon indigenous or tribal peoples’ socio-cultural integrity has also been broadly documented by the IACHR. 206. Thus, extractive concessions in indigenous territories, in having the potential of causing ecological damage, endanger the economic interests, survival, and cultural integrity of the indigenous communities and their members, in addition to affecting the exercise of their property rights over lands and natural resources. The activities of logging companies in indigenous or tribal peoples’ territories, for example, are highly destructive and produce massive damage to the forest and its ecological and cultural functions, causing water pollution, loss of biodiversity, and the spiritual disruption of the forest[540] to the detriment of indigenous and tribal peoples.[541] 207. International human rights organs pay specific attention to the consequences to indigenous peoples’ rights of environmental contamination caused by extractive activities and other development or investment projects.[542] In recent years, the organs of the Inter-American system have witnessed an exponential growth in petitions alleging violations of indigenous peoples’ rights as a consequence of the implementation of development or investment plans or projects or exploration and exploitation of natural resources in their territories. 208. The losses caused indigenous peoples’ traditional territories as a result of colonization and the extension of economic exploitation (agricultural, cattle growing, timber and others) result in major processes of environmental deterioration and disintegration of the communities of affected peoples[543] as they prevent the members of indigenous communities from carrying out their traditional livelihood activities. Among the members of the indigenous and tribal peoples affected in their health, basic subsistence activities and environment as a consequence of development projects, special attention must be paid to especially vulnerable persons, including children, women of fertile age and the elderly.[544] 209. An important gap exists in the regulation of key aspects of the protection of indigenous property rights in the context of exploitation of natural resources in indigenous territories. A series of structural barriers also impede effective implementation of the existing legal provisions. As a result, development and investment plans and projects in indigenous or tribal territories, and concessions for the exploration and exploitation of natural resources, have been found to result in multiple violations of individual and collective human rights, including the right to life in conditions of dignity (violated whenever development projects cause environmental contamination, generate noxious effects upon basic subsistence activities and affect the health of the indigenous and tribal peoples who live in the territories where they are implemented).[545] The IACHR and Court have also found violations stemming from “adverse effects on health and production systems; changes in domestic migration patterns; a decline in the quantity and quality of water sources; impoverishment of soils for farming; a reduction in fishing, animal life, plant life, and biodiversity in general, and disruption of the balance that forms the basis of ethnic and cultural reproduction,” all taking place where the mining, timber or oil industries develop their projects.[546] Concessions, together with the State acts that relate to them, have been considered violations of the right to property protected by the American Convention,[547] and other human rights.[548] 210. In this regard, the IACHR has reiterated that it “acknowledges the importance of economic development for the prosperity of the populations of this Hemisphere;”[549] but “at the same time, development activities must be accompanied by appropriate and effective measures to ensure that they do not proceed at the expense of the fundamental rights of persons who may be particularly and negatively affected, including indigenous communities and the environment upon which they depend for their physical, cultural and spiritual well-being.”[550] 211. The environmental harm from which indigenous and tribal peoples have a right to be protected is that which is caused directly in their territory, or derived from the impact of other concessions.[551] The Inter-American Court has established that there is a violation of Article 21 of the Convention, in conjunction with Article 1.1, whenever the State grants concessions that damage the environment, and such deterioration has a negative impact on the lands and natural resources that indigenous and tribal peoples have traditionally utilized, which are located in whole or in part within the limits of the territory over which they have a right as communal property.[552] Other types of concessions affect not only the natural resources over which they were granted, but also other resources used by indigenous and tribal peoples for subsistence and trade; such is the case, for example, of some forestry and timber concessions, as explained by the Inter-American Court in the Saramaka case: “when a logging concession is granted, a variety of nontimber forest products, which are used by the members of the Saramaka people for subsistence and commercial purposes, are also affected.”[553] Example: the environmental impact of projects for the extraction of natural resources in ancestral territories, and its serious implications for human rights. The case of the Ecuadorean Amazon In its 1997 report on the situation of human rights in Ecuador, the IACHR described the situation of the indigenous inhabitants of the forested regions of the country’s Interior, which had suffered from development and oil production activities for decades, affecting their capacity to exercise their rights to life and physical security because of grave environmental contamination by the extractive industry. The IACHR made an on-site verification of the conditions under which the oil extraction operations were being carried out, and explained that “oil development and exploitation do, in fact, alter the physical environment and generate a substantial quantity of toxic byproducts and waste. Oil development activities include the cutting of trails through the jungle and seismic blasting. Substantial tracts of land must be deforested in order to construct roads and build landing facilities to bring in workers and equipment. Installations are built, and exploratory and production wells drilled. Oil exploitation then generates byproducts and toxic wastes through each stage of operations: exploratory drilling, production, transportation and refining.” These toxic by-products had been discharged for decades in open or ill-constructed pits, overflowing and spilling into the rivers, streams and groundwater, or seeping into the soil; they had been buried, without properly sealing or lining the pits, causing lixiviation to the environment; they had been burned, without controls over temperature, emissions or other environmental protection measures; they had accidentally spilled; or they had been directly discharged into the waters or soils of the region. The Government conceded that the environment had been damaged by deforestation, erosion, the over-exploitation of resources, and high levels of contamination from oil exploitation and mining. The impact of this situation on human health was documented by the IACHR, which identified serious consequences of the pollution on the health and subsistence of the indigenous population of the Amazon region. Based on scientific data and other relevant documentation, the IACHR verified that exposure to oil and associated chemical compounds through the skin, by ingestion in food or water, or absorption by the respiratory system, generate noxious effects for human life and health, posing a considerable risk. The IACHR reported that a survey of 21 communities along the Napo and Quinchiyacu Rivers affected by oil development activities, “had found that roughly three fourths of the community members complained of gastro-intestinal problems; half, of frequent headaches; a third of skin problems; and just under a third of other body aches and fevers. It was also noted that various studies done on the effects of oil contamination indicated that affected populations are at a greatly increased risk of cancer and other grave illnesses. The Director of the Coca Hospital has been cited as indicating an increase in infant mortality due to water contamination and accidents related to petroleum, and local health workers have reported a rise in birth defects, juvenile illnesses and skin infections.” The IACHR verified that in general terms “oil development activities have also been linked, directly and indirectly, with problems in food supply and malnutrition”, a situation illustrated by the fact that “the sectors of Orellana, Shushufindi and Sacha, which are centers of petroleum development activity, register the highest indicators of malnutrition in Ecuador.” The IACHR recalled that the Ecuadorean state is obligated to implement its internal legislation and its international commitments in the field of environmental protection; it indicated that although the right to development implies that the State is free to exploit its natural resources and grant the corresponding concessions, the authorities are under the correlative obligation to apply and enforce the legal provisions that protect the rights to life, health and to live in a healthy environment. The lack of regulation, inappropriate regulations or the lack of supervision in the application of the law, can cause serious impacts upon the environment which eventually translate into human rights violations. Therefore, for the IACHR, the Ecuadorean State had the double duty of adopting measures aimed at preventing environmental contamination, and acting in an immediate manner to repair the damages caused to natural resources by extractive and development activities. Likewise, a necessary component in protecting the rights to life and physical integrity of persons is the adoption of measures aimed at increasing their capacity to safeguard and claim their rights, which include access to information, participation in the pertinent decision-making processes, and access to justice through judicial recourses. The IACHR also clarified that its considerations on the impact of oil-extraction activities were equally applicable to other types of extractive activities with noxious effects upon the environment: “While the Commission has analyzed the human rights situation in the Oriente through the example of oil exploitation activities, it must be noted that other types of development activities raise similar factual and legal concerns. One pertinent example concerns the effects of gold mining in the interior. The processes employed involve various types of chemicals, including cyanide and mercury, which may be emitted into streams and rivers. The toxicity of these substances to humans has been thoroughly documented.” 2. State Duty to Prevent Environmental Damage 212. States have an obligation to prevent damage to the environment in indigenous or tribal territories that would affect the enjoyment of their human rights. Fulfillment of this obligation requires adopting the necessary measures to protect indigenous communities’ habitat from ecological deterioration as a consequence of extractive, cattle-raising, agricultural, timber and other economic activities, as well as from the consequences of infrastructural projects, given that such deterioration reduces their traditional capacities and strategies in terms of food, water and economic, spiritual or cultural activities. In adopting these measures, States must place “special emphasis on protecting the forests and waters, which are fundamental for their health and survival as communities.”[554] In other words, States must “ensure that major development projects in or near indigenous lands or areas of indigenous population, carried out after complying with the requirements of the law, do not cause irreparable harm to the religious, economic or cultural identity and rights of indigenous communities.”[555] This also applies to projects for the exploitation of natural resources.[556] 213. In more specific terms, the IACHR has demanded that States establish adequate safeguards and mechanisms to ensure that concessions for the exploitation of natural resources do not cause environmental damages that affect the lands or the indigenous communities;[557] and it has prompted them to “take steps to prevent harm to affected individuals through the conduct of its licensees and private actors (…) [and to] ensure that measures are in place to prevent and protect against the occurrence of environmental contamination which threatens the lives of the inhabitants of development sectors.”[558] 214. Within the practice of the organs of the Inter-American system, the IACHR first referred to environmental degradation as a form of violation of indigenous peoples’ collective rights, and to the state duty to prevent such degradation, in its 1997 report on Ecuador. In such report, the IACHR paid particular attention to the situation of the Huaorani, the Cofán, the Siona, the Achuar, the Shuar, the Quichua of Sucumbíos and Pastaza, and other indigenous peoples of the Ecuadorean interior as a consequence of the exploitation of oil and other development activities in their traditional territories, recommending the State to put in place adequate measures or protection before the environmental damage is caused.[559] 215. The need to protect indigenous peoples’ environment has also been taken into account by the organs of the Inter-American system in granting provisional or precautionary measures, thereby assuming that the potentially noxious effects of certain activities (such as illegal logging or the deposit of toxic wastes or dangerous materials) pose serious threats that simultaneously affect the life and physical integrity of the members of the communities, and their collective survival, associated to the effective exercise of their right to property over lands and natural resources. 3. State Duties of Immediate Action: Suspension, Reparation, and Prevention of Further Damages 216. Whenever significant ecological or other harm is being caused to indigenous or tribal territories as a consequence of development or investment projects or plans or extractive concessions, these projects, plans or concessions become illegal and States have a duty to suspend them, repair the environmental damage, and investigate and sanction those responsible for the harm. 217. The IACHR has established that priority must be given to the rights to life and integrity of indigenous and tribal peoples in these cases. As a consequence, they are entitled to immediate suspension of the execution of the development or investment plans or projects or of projects for the exploration and exploitation of natural resources which threaten these rights.[560] The IACHR has also underscored the State obligation to implement, in the framework of projects for the exploration or exploitation of natural resources in indigenous or tribal peoples’ territories, participation mechanisms for determining the environmental damages which have been caused and their impact upon such peoples’ basic subsistence activities. Said participation mechanisms must allow for the immediate suspension of the execution of the projects that bear an impact upon life or personal integrity; they must guarantee the imposition of the pertinent administrative or criminal sanctions, and they must allow for the determination and materialization of indemnities for any damages to the environment and basic subsistence activities which are being caused.[561] Chapters IX and X of the present Study detail the participatory and remedial rights in this context. 218. In connection with the obligation to repair the environmental damages which have been caused, the IACHR has indicated that indigenous and tribal peoples whose members are affected by environmental contamination, lack of access to drinking water or exposure to toxic agents derived from projects for the exploration or exploitation of natural resources in their territories, have the right to access the healthcare system without discrimination.[562] Correlatively, States are obliged to “minimize the adverse effects of development projects on indigenous peoples,”[563] and mitigate the damages caused.[564] 219. Finally, the IACHR has explained that a constitutive part of the State’s duties of immediate action in these cases is the obligation of carrying out the necessary investigations to identify those responsible for environmental harm, impose the corresponding sanctions, and proceed to the appropriate measures of reparation: “Where the right to life (…) has been infringed upon by environmental contamination, the Government is obliged to respond with appropriate measures of investigation and redress”.[565] States that have knowledge of the situation of persons affected in their health, subsistence activities or environment as a consequence of development projects, have the duty to impose the corresponding sanctions for non-compliance with the corresponding environmental and/or criminal legal provisions.[566] In this regard, it must be borne in mind that, according to the IACHR, indigenous and tribal peoples have the right to participate in the determination of the environmental damages caused by projects for the exploration or exploitation of natural resources that are in course of being implemented, as well as in the determination of the impact upon their basic subsistence activities;[567] they also have the right to participate in the process of determining the indemnity for the damages caused by such exploration or exploitation of natural resources projects in their territories, according to their own development priorities.[568] 4. Special Requirements for the Implementation of Development or Investment Plans or Projects and the Granting of Extractive Concessions by the State in Ancestral Territories 220. In evaluating proposed development or investment plans or projects, or the granting of extractive concessions, States must take into account, as a primary consideration, the indigenous communities that inhabit the respective territories, and their traditional modes of land tenure.[569] For the Inter-American Court, the term “development or investment plan” refers to “any proposed activity that may affect the integrity of the lands and natural resources within the territory of the […] people, particularly any proposal to grant logging or mining concessions.”[570] 221. The language used by the Inter-American Court refers to limitations caused by “development or investment” plans or projects, category that encompasses those which are aimed at increasing or improving the productive or public utilities infrastructure, including the construction of routes for transportation and communication of persons, merchandise, goods and services (i.e. the construction of pipelines); the construction of dams or of educational, sanitation or military infrastructure, inter alia; as well as the extraction of natural resources. 222. In addition, other modes of affecting the right to property trigger these special safeguards and the State’s protective obligations, such as the establishment of protected natural areas over indigenous territories. Indeed, in some cases the establishment of protected natural areas can be a form of limitation or deprivation of indigenous peoples’ right to the use and enjoyment of their lands and natural resources, derived from the State’s unilateral imposition of regulations, limitations, conditions and restrictions upon said use and enjoyment for reasons of public interest, in this case the conservation of nature.[571] 223. The approval by States of plans for development or investment or exploitation of natural resources often affects indigenous peoples’ capacity to use and enjoy their lands and other natural resources present in their traditional territories. The organs of the system have been particularly careful to seek a balance between the right to indigenous communal property and States’ legitimate interest in the sustainable exploitation of the natural resources of their property. In fact, both the American Convention and the American Declaration clearly visualize the right to property not as an absolute one, but as a right that may be limited for reasons of public utility or social interest. 224. In effect, “Article 21 of the Convention does not per se preclude the issuance of concessions for the exploration and exploitation of natural resources in indigenous or tribal territories.”[572] For the Inter-American Court, while it is true that all exploration and extraction activity in indigenous or tribal territory could affect, to a greater or lesser degree, the use and enjoyment of some natural resources traditionally used for the people’s subsistence, “it is also true that Article 21 of the Convention should not be interpreted in a way that prevents the State from granting any type of concession for the exploration and extraction of natural resources within [indigenous or tribal] territory.”[573] The right to property is not absolute, but “may be restricted by the State under very specific, exceptional circumstances.”[574] 225. In accordance with the above, the American Convention establishes safeguards and limitations regarding the State’s right to award extractive concessions or approve development or investment plans or projects that restrict the use and enjoyment of indigenous peoples’ natural resources or affect their territory.[575] For purposes of granting extractive concessions or undertaking development or investment plans or projects over natural resources in indigenous or tribal territories, the Inter-American Court has identified three mandatory conditions that apply when States are considering approval of such plans or projects: (a) compliance with the international law of expropriation, as reflected in Convention Article 21; (b) non-approval of any project that would threaten the physical or cultural survival of the group; and (c) approval only after good faith consultations –and, where applicable, consent-, a prior environmental and social impact assessment conducted with indigenous participation, and reasonable benefit sharing. These requirements “are consistent with the observations of the Human Rights Committee, the text of several international instruments, and the practice in several States Parties to the Convention.”[576] They are equally consistent with the United Nations Declaration on the Rights of Indigenous Peoples.[577] 226. These requirements apply in several circumstances. Firstly, when the “natural resource is one that has been traditionally used by the members of the [corresponding] people in a manner inextricably related to their survival”.[578] Secondly, when the project may affect other natural resources that are critical for their physical and cultural survival.[579] 227. Compliance with these requirements is mandatory, even if domestic constitutional or legislative provisions reserve for the State ownership of the living, water, and subsoil resources in indigenous territories.[580] Compliance with these requirements is indispensable, even in the exceptional cases of commercial exploitation concessions granted to individual members of the indigenous or tribal people,[581] although neither indigenous or tribal peoples or their members require State concessions or authorizations for traditional use and exploitation of their resources. Example: The special requirements in cases of concessions for exploration or exploitation of natural resources, or development or investment plans or projects on indigenous lands In the case of the Saramaka People v. Suriname, the Inter-American Court of Human Rights established the criteria that must be applied under Article 21 of the American Convention before granting concessions for the exploration and exploitation of natural resources, or of implementation of development or investment plans or projects on indigenous or tribal lands, in order to determine whether such concessions, plans or projects will affect natural resources linked to the indigenous culture or way of life, and therefore, whether the State duties to comply with the three requirements of participation, environmental and social impact assessment, and benefit sharing, are triggered. First, it must be determined “whether this natural resource is one that has been traditionally used by the members of the Saramaka people in a manner inextricably related to their survival” [par. 144]. In regard to the forest, the Court took into consideration: • The Saramaka people’s knowledge of the forests, that is, of the location and variety of the trees they use for different purposes. [par. 144] • The Saramaka people’s use of certain types of trees for different purposes: construction of boats and canoes for transportation; roofs for the houses; fruits for consumption; use of trees for other subsistence purposes. [par. 144] • The way in which the members of the Saramaka people respect and care for the forest. The Court established that they enter the forest to obtain the wood they need for their purposes without destroying the environment. [par. 144] • The fact that the Saramaka also depend on the extraction of wood as part of their economic structure and for subsistence purposes. [par. 145] Based on these findings, the Court held: “This evidence shows that the members of the Saramaka people have traditionally harvested, used, traded and sold timber and non-timber forest products, and continue to do so until the present day. Thus, in accordance with the above analysis regarding the extraction of natural resources that are necessary for the survival of the Saramaka people, and consequently, its members, the State should not have granted logging concessions within Saramaka territory unless and until the three safeguards of effective participation, benefit-sharing, and prior environmental and social impact assessments were complied with” [par. 146]. In addition, the conditions set forth in Article 21 of the Convention for cases of expropriation, and the requirement of not affecting the subsistence of the group and its members, had to be complied with. Second, regarding the gold mining concessions granted in Saramaka territory by the State, the Court analyzed whether they “have affected natural resources that have been traditionally used and are necessary for the survival of the members of the Saramaka people.” [par. 155] It found that, according to the evidence, “the members of the Saramaka people have not traditionally used gold as part of their cultural identity or economic system. Despite possible individual exceptions, members of the Saramaka people do not identify themselves with gold nor have demonstrated a particular relationship with this natural resource, other than claiming a general right to ‘own everything, from the very top of the trees to the very deepest place that you could go under the ground.’” [par. 155] Even though gold is not a resource of traditional use, the Court explained that its extraction would affect other natural resources which are critical for the physical and cultural survival of the Saramaka people. Therefore, the requirements of Convention Article 21 had to be complied with before granting such a concession: “the State has a duty to consult with them, in conformity with their traditions and customs, regarding any proposed mining concession within Saramaka territory, as well as allow the members of the community to reasonably participate in the benefits derived from any such possible concession, and perform or supervise an assessment on the environmental and social impact prior to the commencement of the project” [par. 155]. 228. With regard to concessions which have effectively been granted to third parties within ancestral territory without complying with the requirements derived from Article 21 of the Convention, States must evaluate whether it is necessary to restrict such third parties’ contractual or legal rights in order to preserve the physical and cultural survival of the corresponding people, in light of the Inter-American jurisprudence.[582] a. Apply the International Law of Expropriation 229. In the first place, States must comply with the requirements established in Article 21 of the American Convention on Human Rights for cases of expropriation. Every limitation of the content of indigenous peoples’ right to property over their natural resources must respect the general provisions that regulate legal limitations of property for reasons of public interest, that is to say, expropriations. 230. As explained by the Court, “Article 21 of the Convention states that the ‘law may subordinate [the] use and enjoyment [of property] to the interest of society.’ Thus, the Court has previously held that, in accordance with Article 21 of the Convention, a State may restrict the use and enjoyment of the right to property where the restrictions are: a) previously established by law; b) necessary; c) proportional, and d) with the aim of achieving a legitimate objective in a democratic society.[583] In accordance with this Article, and the Court’s jurisprudence, the State will be able to restrict, under certain circumstances, the Saramakas’ property rights, including their rights to natural resources found on and within the territory.”[584] Article 21.2 provides that “[n]o one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.” 231. It is pertinent to recall at this point the clarification made by the Court, in the sense that “the right to obtain compensation under Article 21(2) of the Convention extends not only to the total deprivation of property title by way of expropriation by the State, for example, but also to the deprivation of the regular use and enjoyment of such property.”[585] b. No Approval of Projects that Threaten the Physical or Cultural Survival of the People 232. The State may not grant a concession or approve a development or investment plan or project that could affect the survival of the corresponding indigenous or tribal people, in accordance with its ancestral ways of life. In the Inter-American Court’s terms: “[I]n analyzing whether restrictions on the property right of members of indigenous and tribal peoples are permissible, especially regarding the use and enjoyment of their traditionally owned lands and natural resources, another crucial factor to be considered is whether the restriction amounts to a denial of their traditions and customs in a way that endangers the very survival of the group and of its members.”[586] Under Article 21 of the American Convention, the State may restrict an indigenous or tribal people’s right to use and enjoy their traditionally owned lands and natural resources only when such restriction complies with all the requirements established therein, and when it does not deny their survival as an indigenous or tribal people.[587] The Human Rights committee in the case of Länsman and other v. Finland,[588] supports this norm: “allowing States to pursue development activities that limit the rights of a minority culture as long as the activity does not fully extinguish the indigenous people’s way of life.”[589] 233. The notion of “survival” is not tantamount to mere physical existence: “The Court emphasized in the Saramaka judgment that the phrase ‘survival as a tribal people’ must be understood as the ability of the people to ‘preserve, protect and guarantee the special relationship that [they] have with their territory’, so that ‘they may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected […]’. That is, the term ‘survival’ in this context signifies much more than physical survival.”[590] In similar terms, for the Court, “the term ‘survival’ (…) does not refer only to the obligation of the State to ensure the right to life of the victims, but rather to take all the appropriate measures to ensure the continuance of the relationship of the Saramaka People with their land or their culture.”[591] Example: environmental, epidemiological and socio-cultural sequels of economic development processes in indigenous territories. The case of the Ecuadorean Amazon. In its 1997 report on the situation of human rights in Ecuador, the IACHR described the impact that development activities had had upon the human rights and the physical and cultural survival of the indigenous peoples of the interior of the country. In the first place, the IACHR described the situation of serious environmental contamination caused by decades of extractive activities, particularly by the oil industry, whose repercussions upon the enjoyment of human rights were referred above. But as the IACHR was informed, the “indigenous peoples of the Ecuadorean Amazon maintain that the effects of oil development and exploitation in the Oriente have not only damaged the environment, but have directly impaired their right to physically and culturally survive as a people.” Thus, the IACHR identified some additional sequels of the oil industry development process which had taken place in the foregoing decades, explaining that “the opening of the traditional lands of Ecuador’s Amazonian indigenous peoples to oil exploitation and other development activities has resulted in a number of directly attributable consequences.” First, this process brought along an influx of outsiders and transportation infrastructure to the Amazonian indigenous peoples’ territories: “The oil boom initiated in the interior in late 1960’s led to the construction of a network of roads, used to bring in workers and equipment, as well as to construct and service production sites and other facilities, into the heart of what had traditionally been indigenous territory. In this way, oil development opened and exposed the interior in a way that previous development and outside contact had not.” This process was accompanied by a strong colonization initiative promoted by the Government itself: “In addition to the non-native workers brought in to build roads and construct and operate facilities, the opening of roads funneled colonists, land speculators, and loggers into indigenous homelands. In the case of the Oriente, this colonization was encouraged by the
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