QUESTIONNAIRE FOR STATES, INDIGENOUS PEOPLES, INDIGENOUS AND CIVIL SOCIETY ORGANIZATIONS
ANALYSIS OF THE STANDARDS SET BY THE INTER-AMERICAN SYSTEM WITH REGARD TO THE PROPERTY RIGHTS OF INDIGENOUS PEOPLES OVER LANDS, TERRITORY AND NATURAL RESOURCES
In the last few
years, the jurisprudence of the inter-American system on human rights
has made significant progress in the area of human rights of indigenous
peoples, both, at the IACHR level, where it is reflected in the
processes of friendly settlement, individual decisions and in
precautionary measures, as well as in the decisions and judgments of the
Inter-American Court. One of the most important developments in terms of
jurisprudence has taken place in the area of property rights of
indigenous peoples over lands, territories and natural resources, rights
which are of vital importance to the cultural and economic survival of
these peoples in the region.
In this context, the purpose of this questionnaire, designed by the Rapporteurship on the Rights of Indigenous Peoples of the Inter-American Commission on Human Rights (IACHR), is to collect information on the experiences, practices, legislation and jurisprudence of the various States of the region with regard to the protection and effective exercise of the property rights of indigenous peoples over their lands, territories and natural resources. The information collected and compiled will provide the basis for a study of this subject in light of the standards established by the inter-American system on human rights, as well as for the development of a series of specific guidelines to assist States comply with their regional and international obligations with regard to investment, development, exploration and extraction of natural resources projects, which could affect the property rights of indigenous peoples.
Responses to this questionnaire must be submitted no later than September 21, 2009 to:
Special Rapporteurship on the Rights of Indigenous Peoples
Inter-American Commission on Human Rights. OAS
1889 F Street, NW
Washington, DC 20006
I. LEGAL FRAMEWORK AND POLICIES REGARDING THE PROPERTY RIGHTS OF INDIGENOUS PEOPLES OVER LANDS, TERRITORIES AND NATURAL RESOURCES
A. Domestic legal framework
1. Which existing laws protect the property rights of indigenous peoples over lands, territories and natural resources? What progress has been made in the last 5 years in reforming laws in this regard? In countries with federal systems of government, are there similar laws in all states or provinces? What rights are included in these laws?
2. Please provide detailed information with regard to guarantees, mechanisms or proceedings established in the domestic legal framework, including developments in jurisprudence, regarding the following areas:
- recognition of the special relationship of indigenous peoples to their lands, territories and natural resources which they have traditionally inhabited and used for their subsistence economies and to which they have other cultural and spiritual ties;
- recognition and guarantee of the collective nature of indigenous property;
- recognition of the normative value of customary law; uses, values and customs, as the basis of their property rights;
- recognition of the use of and access to lands and to natural resources in lands which are not the exclusive property of, or are used seasonally or cyclically by indigenous peoples;
- recognition of the right to return to lands and territories indigenous peoples were deprived of without their consent;
- special mechanisms to protect the property rights of indigenous peoples;
- Settlement and adjudication mechanism in cases of property disputes between indigenous communities and third parties not connected to the communities.
3. How have the courts applied international norms and domestic legislation with regard to the property rights of indigenous peoples? List the most relevant legal cases in this area.
what extent have international legal standards, including the
jurisprudence of the inter-American system on human rights, Convention
No. 169 of the International Labor Organization, and the United Nations
Declaration on the Rights of Indigenous Peoples, influenced the adoption
and implementation of these domestic laws?
B. Delimitation, demarcation and certification of title of indigenous lands and territories
5. What is the specific legal framework to set the boundaries, demarcate and obtain a certificate of title to lands and territories of indigenous peoples? How is it different from the mechanism for obtaining a certificate of title to land for other sectors of the population?
6. If agricultural censuses are conducted in your country, is there a specific module in the census form for indigenous lands?
7. What is the annual budget allocated to programs to carry out demarcation, certification of title or restitution of indigenous lands?
8. Please identify existing obstacles to carrying out the delimitation and demarcation of and obtaining certification of title to indigenous lands and territories.
C. Property rights of indigenous peoples in protected natural areas
9. What is the existing legislation with regard to establishing and managing protected natural areas and environment conservation projects?
10. With regard to protected areas or conservation projects:
- What are the existing mechanisms to guarantee the participation of an indigenous community or indigenous communities affected in the establishment and management of those areas or projects?
- How are the property rights of indigenous peoples guaranteed in those areas?
- What are the mechanisms to compensate or indemnify the community or communities affected and to guarantee that they share in the benefits derived from the establishment of such areas or projects?
D. Peoples isolated by choice or particularly vulnerable
11. Are there laws or programs specifically aimed at protecting the property rights of indigenous peoples who are isolated by choice or particularly vulnerable, over lands, territories or natural resources?
E. Access to effective judicial protection
12. What competent judicial or administrative recourse do indigenous peoples have access to in case their property rights over their lands, territories or natural resources are violated? Are there courts with specific responsibility in this area?
13. Is the legal standing of indigenous peoples or communities recognized for the purpose of lodging complaints and petitions before judicial or administrative courts and authorities?
F. Institutional framework and public policy
14. Which institution or institutions have responsibility with regard to promoting and protecting the property rights of indigenous peoples over lands, territories and natural resources? What is the level of participation of indigenous peoples in those institutions?
15. Are there specific plans or programs to promote and protect the property rights of indigenous peoples over lands, territories and natural resources? What obstacles do these initiatives face?
II. LEGAL FRAMEWORK REGULATING INVESTMENT, DEVELOPMENT, EXPLORATION AND EXTRACTION OF NATURAL RESOURCES PROJECTS THAT MAY AFFECT THE RIGHTS AND INTERESTS OF INDIGENOUS PEOPLES
A. Carrying out social and environmental impact studies
16. Are social and environmental impact studies required in cases of investment, development or exploitation of natural resources projects? How do the affected indigenous communities participate in the studies being carried out?
B. Compensation or indemnification
17. What are the mechanisms to compensate or indemnify indigenous peoples in cases of investment, development or exploitation of natural resources projects that affect their interests and property rights? How are those compensations or indemnifications calculated?
18. What are the existing mechanisms to protect the rights of communities that have or may claim rights to property but who do not have an official certificate of title to the property?
C. Sharing in the benefits
19. What mechanisms exist to ensure that indigenous peoples share in the benefits derived from investment, development or exploitation of natural resources projects? Please supply specific examples.
20. What mechanisms exist to ensure that communities that have or may claim rights to property but do not have an official certificate of title to the property share in the benefits derived from the projects?
D. Participation and consultation mechanisms
21. Please provide detailed information about the process to be followed to consult with indigenous peoples with regard to investment, development and exploitation of natural resources projects that may affect them. What are the phases and time limits of this process? How are the lines of authority and the decision-making process of indigenous peoples taken into account?
22. What impact do the contents of the consultation process have on decisions made regarding these projects? Please provide specific examples of cases where the results of the consultation process have been successfully implemented in the decision-making process regarding projects.
23. Is there recognition of the obligation to obtain prior consent from indigenous communities before proceeding with large scale investment, development or exploitation of natural resources projects that would have a substantial impact on those indigenous communities?
24. What administrative or judicial recourse do indigenous peoples have to ensure that the State complies with its obligation to consult with them? What are the penalties for not complying with this obligation?
25. Please identify what obstacles exist in the application of laws regarding participation and consultation in this area.
E. Responsibility of private enterprise
26. What responsibilities do private businesses have with regard to the State’s obligations mentioned above? What are the administrative oversight mechanisms to supervise the activities of those businesses?
27. Are there examples of codes of conduct or mechanisms of corporate social responsibility with regard to indigenous peoples? To what extent have those codes or mechanisms been developed with the participation of the interested peoples?