Threats from Oil and Gas Projects in the Western Amazon - Recent Advances and Issues in Environmental Science - page 155

Free, Prior and Informed Consent
Governments claim the authority to manage natural resources located on or below
indigenous people's territories for the public interest, while indigenous peoples claim
that their rights to property and territory allow them the right to FPIC regarding pro-
posed extractive projects on their lands [54, 55].
The key distinction lies between consultation and consent. International law—
namely the 1989 International Labour Organization's Indigenous and Tribal Peoples
Convention No. 169—clearly mandates that indigenous peoples be consulted about
development projects on their territories [56]. Indeed, national regulations in Ecuador
and Peru, for example, mandate such consultation [57, 58]. The question is, do indig-
enous peoples have the right to reject a project planned on their territory after being
properly consulted? The latest international instruments indicate “yes.” The United
Nations Declaration on the Rights of Indigenous Peoples—adopted by the General
Assembly in 2007—emphasizes FPIC prior to government approval of any project
affecting indigenous lands or territories [59]. Also in 2007, the Inter-American Court
on Human Rights issued a landmark ruling, Case of the Saramaka People v. Suriname ,
that the State must ensure the right of local peoples to give or withhold their consent
in regard to development projects that may affect their territory [55].
A prerequisite for effective FPIC procedures is that indigenous peoples possess
legal title to their traditional lands. The Inter-American Human Rights System has
dealt extensively with this issue. In 1998, the Inter-American Commission found that
it is a violation of the American Convention on Human Rights (Article 21, Right to
Property) for a government to grant an extractive concession without the consent of
the indigenous peoples of the area. The Inter-American Court subsequently ruled that
this right to property requires the titling of their traditional territory [60]. Although
many communities and nationalities have obtained such title, others still have not (or
else the process is incomplete). Given that most of the oil blocks in question are in
indigenous areas, the resolution of who controls the land and its sub-surface resources
will greatly infl uence the development of the region.
Indigenous Peoples in Voluntary Isolation
The situations in Ecuador and Peru highlight two of the major issues concerning hy-
drocarbons and indigenous peoples in voluntary isolation: A lack of understanding of
the full extent of the territories of peoples in voluntary isolation and debate regarding
“intangibilidad”—or untouchablility—of their known territories.
In Ecuador, the government created a Zona Intangible (Untouchable Zone) to pro-
tect the territory of its two known isolated groups from oil development in 1999 and
delimited the 7,580-km 2 zone via Presidential Decree in January, 2007. However, tes-
timonies from local indigenous Waorani indicate that signs of the Taromenane and
Tagaeri are sometimes seen in areas that are covered by oil blocks, north of and outside
the Zona Intangible. Moreover, the Taromenane speared to death an illegal logger
outside the northern limit of the Zona Intangible in March, 2008 [61], the clearest
evidence to date that they range outside the demarcated zone.