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Right holders Archives: Indigenous peoples

Amparo No. 631/2012 (Independencia Aqueduct)

On 08/05/2013 in

Year: 2013 (Date of Decision: 8 May, 2013)

Forum, Country: Supreme Court; Mexico

Standards, Rights: Right to adequate housing; Rights to water and sanitation; Right to free, prior and informed consent; Right to an adequate standard of living; Indigenous people

Summary Background: The Mexican Government approved a large-scale water supply and construction project involving the transmission of around 60 million cubic metres of water from the “El Novillo” dam to the Sonora river basin to supply the city of Hermosillo. The Yaqui tribe (the initial appellants) claimed the project was in violation of their rights to territory, consultation and to a safe environment and sought a writ for the protection of their constitutional rights (an “amparo”). The group argued the river is a source of both economic and cultural sustenance and that they were, by law, holders of 50 per cent of the water, as provided for in a presidential decree.

The Fourth District Court found in favour of the Yaqui tribe. SEMARNAT (the federal environmental agency) appealed to the Supreme Court of Justice.

Holding: The Supreme Court upheld the Fourth District Court’s decision in favour of the Yaqui tribe and maintained that the State of Mexico had erred in failing to inform or consult the tribe at first instance [p. 88]. Upon request for further clarification from the appellants, the Supreme Court issued a decision expressly outlining the conditions to be met by the State; namely, the project was to be halted until proper consultation was effected between the State and the Yaqui tribe [p. 86].

The Supreme Court ordered that such consultation be prompted in accordance with the appropriate tribe customs, that it outline any irreversible damage caused by the project, and that a finding of any violations may result in the project being stopped [p. 83].

Additional Comments: Since this decision was issued, it has been noted that enforcement of the judgement has been poor and consultations with the Yaqui tribe are yet to take place. This was the first time the Inter-American standards on the right to consultation with indigenous communities was acknowledged in Mexico.

Link to Full Case: http://www.escr-net.org/es/node/365316, English translation accessible at http://www.escr-net.org/node/365312

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South Fork Band Council and others v. United States Department of the Interior

On 03/12/2009 in

Year: 2009 (Date of Decision: 3 December, 2009)

Forum, Country: Court of Appeals, United States of America

Standards, Rights: Right to free exercise of religion; Rights to water and sanitation; Right to adequate housing; Right to health; Indigenous people

Summary Background: The plaintiff appellants comprised the South Fork Band Council of Western Shoshone Nevada and other tribes and organizations (“the Tribes”). The Tribes sought an emergency injunction regarding the approval of a gold mining project by the US Department of Interior and its Bureau of Land Management (“BLM”) located in a sacred site. The project involved ten years of mining and up to three years of ore processing, and would allegedly create a “substantial burden to the exercise of religion.” Domestic law prohibits governmental entities from imposing such burdens unless the government can show that the practice is in furtherance of a “compelling governmental interest” and is the “least restrictive means” of furthering that interest (US Code §2000bb-1). The injunction was denied by the Federal District Court. The appellants alleged violations of the Federal Land Policy Management Act (“FLPMA”) and the National Environmental Policy Act (“NEPA”) and sought an injunction to be granted on appeal.

Holding: To be granted injunctive relief, the Court required that the appellants demonstrate they were likely to “suffer irreparable harm” if a preliminary injunction were denied, that the balance of equities tipped in their favour and that an injunction was in the public interest [para. 14]. In addition, it was necessary to show the BLM’s actions were either arbitrary and capricious or contrary to law [p. 15828].

While the Court declined to find that the appellants had demonstrated the likelihood of success for their FLPMA claims given the in-depth Environmental Impact Statement undertaken by the respondents in consultation with the Tribes and public over a two-year period, it did grant an injunction regarding the NEPA actions to allow a study that adequately considered the environmental impact of “millions of tons of refractory ore,” the adverse impact on local springs and streams, and the extent of fine particulate emissions [pp. 15828 and 15831-15840].

Additional Comments: This case is relevant to the broader framework of issues raised by international human rights bodies condemning the failure of US federal policy to protect Indian land rights and environmental law (see, for instance, the western Shoshone petition to the UN Committee on the Elimination of Racial Discrimination (2006) and the Inter-American Commission on Human Rights (2002).)

Link to Full Case: http://cdn.ca9.uscourts.gov/datastore/opinions/2009/12/03/09-15230.pdf

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Case of the Sawhoyamaxa Indigenous Community

On 29/03/2006 in

Year: 2006 (Date of Decision: 29 March, 2006)

Forum, Country: Inter-American Court of Human Rights; Paraguay

Standards, Rights: Procedural fairness and due process; Right to life; Right to adequate standard of living; Right to adequate housing; Right to adequate food; Rights to water and sanitation; Indigenous people

Summary Background: The Sawhoyamaxa Community has historically lived in the lands of the Paraguayan Chaco, which since the 1930s have been transferred to private owners and gradually divided. This increased the restrictions for the indigenous population to access their traditional lands, thus bringing about significant changes in the Community’s subsistence activities and finally caused their displacement.

Holding: The Court found various violations of the ACHR, such as of article 8 and 25 (right to a fair trial and judicial protection), article 21 (right to property), article 4(1) (right to life), and article 3 (right to recognition as a Person before the Law), all of them in relation to article 1(1) (the obligation to respect rights) [paras. 112, 144, 178 and 194]. The Court ordered the Paraguayan government to adopt measures for returning the ancestral lands to the Community within three years [para. 215], to provide basic goods and services and implement an emergency communication system until they recovered their land [para. 230]. Moreover, a development fund for the Community in the amount of one million US dollars had to be created [para. 224], compensation in the amount of 20,000 US dollars was to be paid to the families of the 17 persons who died as the result of the forced displacement of the Community [para. 226] as well as for non-pecuniary damages, costs and expenses [para. 239].

Additional Comments: However, in the years following the judgement no progress was made toward the implementation of the judgements and the communities decided to unite their efforts and to ask Amnesty International to help them set up an international campaign designed to put pressure on the government.

The fact that the two communities were in the exact situation and undertook joint actions may have been an important factor in the enforcement process.

Link to Full Case: http://www.corteidh.or.cr/docs/casos/articulos/seriec_146_ing.pdf

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Case of the Yakye Axa Indigenous Community

On 17/06/2005 in

Year: 2005 (Date of Decision: 17 June, 2005)

Forum, Country: Inter-American Court of Human Rights; Paraguay

Standards, Rights: Procedural fairness and due process; Right to life; Right to adequate standard of living; Right to adequate housing; Right to adequate food; Rights to water and sanitation; Right to health; Right to education; Indigenous people

Summary Background: The Yakye Axa community, a Paraguayan indigenous community, has traditionally lived in the lands of the Paraguayan Chaco, large parts of which were sold through the London stock exchange at the end of the 19th century. In 1979, the Anglican Church began a comprehensive development program and fostered resettlement of the indigenous groups to Estancia El Estribo, where the natural environment and resources are different from those of the place of origin of these indigenous groups. While they stayed there, the community lacked adequate access to food and water, health services and education. Sixteen persons died due to these living conditions.

Holding: The Court found that Paraguay had violated various provisions of the American Convention on Human Rights (ACHR) in relation to article 1(1) (the obligation to respect rights), such as the right to a fair trial and judicial protection (article 8 and 25) [para. 119], the right to property (article 21) [para. 156] and the right to life (article 4) [para. 176], since it failed to adopt the necessary positive measures required to ensure the community lived under dignified conditions during the period they had to do without their land [para. 168-169]. The Court considered that Paraguay had failed to adopt adequate measures to ensure its domestic law guaranteed the community’s effective use and enjoyment of their traditional land and concluded that the State had the obligation to adopt positive measures towards a dignified life, particularly when high risk, vulnerable groups that require priority protection were at stake [para. 162]. The Court ordered the State to submit the traditional land to the community at no cost [para. 217], to establish a fund for the purchase of land for the community [para. 218], and to provide basic goods and services necessary for the community to survive as long as the Community remained landless [para. 221].

Moreover, the State was ordered to create a community development fund and a community program for the supply of drinking water and sanitary infrastructure. In addition, the Court ordered the State to allocate 950,000 US dollars to a community development program consisting of the implementation of education, housing, agricultural and health programs [para. 205]. Pecuniary damage had to be compensated and costs and expenses reimbursed within one year [para. 233].

Additional Comments: The Inter-American Court stated that it would supervise enforcement and ordered the State to submit a report on measures adopted within one year after the decision was notified [para. 241].

Link to Full Case: http://www.corteidh.or.cr/docs/casos/articulos/seriec_125_ing.pdf

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