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general level, throughout the process as it affects indigenous peoples.
1
In this regard, Article 15 should be read in conjunction with Articles 6 and 7 of the
Convention, requiring consultation and participation of indigenous peoples in the formulation,
implementation and evaluation of development plans affecting them see also section 5 on consultation
and participation. .
The right to having the impact of exploration and exploitation ascertained.
Article 152 stipulates that indigenous peoples shall be consulted, with a view to ascertaining
whether and to what degree their interests would be prejudiced by exploration and exploitation of
resources. This article should be read in conjunction with Articles 6 and 73 of the Convention, which
specify that the social, spiritual, cultural and environmental impact of development activities on
indigenous peoples shall be assessed in cooperation with them, and that the results of such studies
shall be considered as fundamental criteria for the implementation of these activities. Moreover, Article
74 stipulates that governments, in collaboration with indigenous peoples, shall take measures
to protect and preserve the environment of their territories. A number of institutions and agencies
have come up with guidelines for such impact assessments, stipulating among other issues
the need to build upon and integrate indigenous peoples’ knowledge, ensure participation throughout
the process, integrate gender concerns and address capacity-building as an integral element.
The right to beneit in the proits made from exploitation and use of natural resources.
Indigenous peoples have the right to participate in the sharing of the beneits generated by the
exploration or exploitation of the natural resources on their lands. This beneit-sharing can take a
variety of forms, including speciic agreements with individual communities; negotiated agreements
between states and self-governing territories or redistribution of taxes and revenues to speciic
indigenous peoples’ development purposes.
1 see GB.282142, case cited in section 8.2
The right to be compensated for damages caused by exploration and exploitation of
natural resources. Unfortunately, exploration and exploitation may
have a negative effect on the environment, health, social institutions and livelihoods of indigenous
peoples. In these cases, Article 152 speciically states that indigenous peoples should receive a fair
compensation.
The provisions of Convention No. 169 are reafirmed in the
UN Declaration on the Rights of Indigenous Peoples, which
stipulates that: Article 32,
1.
Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other resources.
2.
States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and informed
consent prior to the approval of any project affecting their lands or territories and other
resources, particularly in connection with the development, utilization or exploitation of
mineral, water or other resources. 3.
States shall provide effective mechanisms for just and fair redress for any such activities,
and appropriate measures shall be taken to mitigate adverse environmental, economic,
social, cultural or spiritual impact.
8.2. COmmENTS By THE ILO SUPERVISORy BODIES: NATURAL RESOURCES
The ILO supervisory bodies have examined a large number of cases, alleging lack of consultation with
indigenous peoples in the context of exploration and exploitation of natural resources. The following
case is illustrative of the challenges faced by many countries in the implementation of indigenous
peoples’ rights in this regard.
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Ecuador: Consultation regarding the exploitation of natural resources
In 1998, the Ecuadorian Government signed an agreement with a company for the exploitation of
oil in an area comprising 70 percent of the 150,000 hectares territory of the Independent Federation
of the Shuar People of Ecuador FIPSE, made up of ten associations which represent approximately
5,000 people. The complainant alleged that, although oil is a
resource to which the Government has inalienable property rights and the oil company acted in the
name of the Government, the members of the FIPSE were not informed that an agreement for the mining
of hydrocarbons in the territory’s subsurface had been signed nor were they at any time consulted in
this regard.
In 1998, an extraordinary assembly of the FIPSE had decided not to allow any negotiations between
individual members or communities and the company and declared that “any attempt by the
company in this regard would be considered as a violation of the integrity of the Shuar people and its
organizations and as an open infringement of our rights as recognized in the Constitution of Ecuador
and in Convention No. 169 of the ILO”. The complainant alleged that this public declaration by
the FIPSE was not respected, as the company tried to divide the local organizations, to create ictitious
committees to coordinate their activities and to denigrate indigenous organizations in the eyes of the
public. It is also alleged that the Government violated Convention No. 169 by signing a document agreed
between Arco oficials and some FIPSE members supposedly approving exploration and exploitation
activities on Shuar territory following the public declaration by the FIPSE assembly.
In reply the Government declared that the consultations required under Convention No. 169
were not applicable, as the agreement with the oil company was signed on 27 April 1998 and the
Convention was only ratiied by Ecuador on 15 May 1998. Therefore, the Government stated that the
provisions of the Convention were not applicable to the events referred to due to the principle of the
non-retroactivity of the law. The Government noted that the Constitution as well as the Hydrocarbons
Act relect its concern with safeguarding the rights of the indigenous peoples, and that economic
contributions and other beneits have been established to compensate for any damages caused
to the environment by the oil companies.
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The Government also put forward its view that projects for the exploration and exploitation of
hydrocarbons are motors of economic growth and therefore serve the interests of national
development. It noted its concern at the fact that the Amazon region of the country contains both
the highest indigenous population and the greatest hydrocarbon potential, a resource that is a part of
the State patrimony. The Government also indicated that the cooperation agreements signed between
Arco and three of the FIPSE’s associations remained null and void because other associations belonging
to the FIPSE rejected them. In its response, the ILO Tripartite Committee noted
that national legislation in many countries establishes that the rights to subsurface resources are part of
State patrimony. The Convention recognizes this legal principles but also “establishes an obligation
when administering those resources: the obligation of the State to consult the indigenous and tribal
peoples which could be affected prior to authorizing activities for the exploration and exploitation of
the subsurface resources situated on indigenous territories”.
The Committee afirmed that the provisions of the Convention cannot be applied retroactively but
that some of the facts outlined in the complaint concern activities that have taken place since the
Convention came into force in Ecuador on 15 May 1999. Although, at the time of taking the decision
to sign the share agreement between the company and the Government, Convention No. 169 had not
yet been ratiied, the Committee observes that “the situation created by the signature of that agreement
still prevails. In addition, the obligation to consult the peoples concerned does not only apply to the
concluding of agreements but also arises on a general level in connection with the application of the
provisions of the Convention”.
The Committee noted that “the spirit of consultation and participation constitutes the cornerstone of
Convention No. 169 on which all its provisions are based”.
The Committee stressed its awareness of “the dificulties entailed in the settlement of disputes
relating to land rights, including the rights relating to the exploration and exploitation of subsurface
products, particularly when differing interests and points of view are at stake such as the economic
and development interests represented by the hydrocarbon deposits and the cultural, spiritual,
social and economic interests of the indigenous peoples situated in the zones where those deposits
are situated”.
The Committee considered that “the concept of consulting the indigenous communities that could
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be affected by the exploration or exploitation of natural resources includes establishing a genuine
dialogue between both parties characterized by communication and understanding, mutual respect,
good faith and the sincere wish to reach a common accord. A simple information meeting cannot be
considered as complying with the provisions of the Convention. In addition, Article 6 requires that the
consultation should occur beforehand, which implies that the communities affected should participate
as early as possible in the process, including in the preparation of environmental impact studies.
Although in this case the project was established before the Convention came into force in Ecuador,
when it did come into force so did the obligation to carry out consultations in respect of any activity
affecting the application of the Convention.”
In the Committee’s view, while Article 6 “does not require consensus to have been reached in the
process of prior consultation, it does stipulate that the peoples involved should have the opportunity
to participate freely at all levels in the formulation, implementation and evaluation of measures and
programmes that affect them directly, as from the date on which the Convention comes into force in
the country”.
Given the continuation of the activities authorized under the share agreement, the Committee
considered that the Government had the obligation to consult the indigenous communities as from the
entry into force of the Convention in order to allow the community to participate in its own economic,
social and cultural development.
Furthermore, the Committee underlined “that the principle of representativity is a vital component of
the obligation of consultation”. It noted that “it could be dificult in many circumstances to determine
who represents any given community. However, if an appropriate consultation process is not
developed with the indigenous and tribal institutions or organizations that are truly representative of the
communities affected, the resulting consultations will not comply with the requirements of the
Convention.”
In the speciic case, the Committee considered that “not only was the appropriate consultation
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not carried out with an indigenous organization clearly representative of the peoples concerned
[…] but the consultations that were carried out excluded it, despite the public statement issued by
the FIPSE in which it determined “not to allow any negotiation between individual members […] and
the company”. The Committee recalled that “Article 61c stipulates that governments shall ‘establish
means for the full development of these peoples’ own institutions and initiatives, and in appropriate
cases provide the resources necessary for this purpose’. This being the case, the Committee
considers that any consultation carried out in future in respect of Block 24 should take into account the
abovementioned statement by the FIPSE.” Governing Body, 282
nd
Session, November 2001, Representation under article 24 of the ILO
Constitution, Ecuador, GB.282142.
8.3. PRACTICAL APPLICATION: NATURAL RESOURCES
