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V I I I . N AT U R A L R E S O U R C E S
8.1. RIGHTS TO NATURAL RESOURCES, CON- SULTATION, BENEfITS AND COmPENSATION
The recognition of indigenous peoples’ rights to natural resources is inextricable tied to the rights
to lands and territories see section 7. Therefore, Convention No. 169 establishes as a basic
principle that indigenous peoples have the rights to the natural resources pertaining to their lands
and to participate in the use, management and conservation of these resources:
ILO Convention No. 169: Article 15.1:
The rights of the peoples concerned to the natural resources pertaining
to their lands shall be specially safeguarded. These rights include the right of these peoples
to participate in the use, management and conservation of these resources.
The Convention thus speciies that indigenous peoples have
rights to the natural resources of
their territories, including the right to participate in the use, management, protection and conservation
of these resources. As a basic principle, these resources comprise both renewable and non-
renewable resources such as timber, ish, water, sand and minerals.
However, there are many cases in which the State Constitutions provides that the States alone owns
mineral and other resources. Article 152 recognizes this situation while also stipulating that indigenous
peoples have rights regarding consultation, participation in the beneits of resource exploitation
as well as compensation for damages resulting from this exploitation.
ILO Convention No. 169: Article 152:
In cases in which the State retains the ownership of mineral or sub-surface
resources or rights to other resources pertaining to lands, governments shall
establish or maintain procedures through which they shall consult these peoples, with
a view to ascertaining whether and to what degree their interests would be prejudiced,
before undertaking or permitting any programmes for the exploration or exploitation
of such resources pertaining to their lands. The peoples concerned shall wherever
possible participate in the beneits of such activities, and shall receive fair compensation
for any damages which they may sustain as a result of such activities.
There are numerous examples where the exploration or exploitation of mineral or sub-surface resources
on indigenous peoples’ lands has led to conlicts. In these situations, Article 152 of Convention No.
169 seeks to reconcile interests by recognizing the following rights to indigenous peoples. It must
also be speciically noted that the responsibility for ensuring that these rights are respected lies with the
concerned governments and not with the private companies or entities that are licensed to undertake
the exploration or exploitation.
The right to be consulted before natural resources on their lands are explored or
exploited. During consultation, indigenous peoples shall be
able to state their concerns. For example, they can give reasons why resources should not be
extracted or why certain areas should be exempted due to environmental concerns, impact upon
sacred sites, pollution, health problems, loss of basis of subsistence economy, etc. Considering
that exploratory and exploitative activities are often long-term processes where companies are
granted concessions of periods of 30-50 years, it is important to underline that the obligation to consult
does not only apply when taking the decision to explore or exploit resources but also arises on a
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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
Kategori