Current status of the jurisprudence of the Inter-American Court regarding the rights of indigenous peoples. Few cases related to the rights of indigenous or tribal peoples have come before the Inter-American Court: only fifteen sentences compared to the nearly 130 contentious cases that the Court has heard since 1987 (These cases have provided the Court with the opportunity to interpret the American Convention on Human Rights in light of the cultural specificities of traditional societies.

Of these fifteen rulings issued by the Court regarding violations of the rights of indigenous or tribal peoples, only six have referred to the territorial rights of these peoples. Based on the “right to private property” set forth in the Convention, the Court has developed the right of members of traditional peoples to their ancestral territories. Thus, it has affirmed their right to be recognized as owners of their ancestral lands and of the traditionally used natural resources found therein. This jurisprudence resulted, on the one hand, in the affirmation of the right to restitution of territories of the peoples that were illegally dispossessed, and, on the other hand, in additional conditions to be able to carry out an expropriation. In this way, if the States want to exploit natural resources in indigenous territories, they are obliged to carry out prior environmental and social impact studies, to consult the interested people in order to obtain their consent, and to share the benefits. In addition, when it comes to large-scale projects, which may have a greater impact on the territory, the States are obliged to obtain the consent of the indigenous community.

The case of the Kichwa People of Sarayaku and its potential to allow a consolidation of jurisprudence. The examination of this case by the Inter-American Court is of great importance, since it could allow the Inter-American system for the protection of human rights to specify and strengthen its jurisprudence on the rights of indigenous and tribal peoples to their ancestral territories.

Importance of the present case given the situation of exploitation of resources in ancestral territories. Unfortunately, the case of the Sarayaku People for preserving their territory and ensuring their survival is not the only one in the Americas. On the contrary, it exemplifies the struggle of the ancestral peoples in the Americas against the omnipresence of companies that exploit natural resources or that carry out megaprojects, such as the construction of dams or highways, seriously affecting said territories.

We must not forget that the States, the only ones that can be sanctioned by the Inter-American Court, are internationally responsible before it if they do not comply with their obligations regarding activities carried out in indigenous territories by private companies. In this sense, the ruling of the Court in the Sarayaku case could have an impact, not only in terms of the obligations of Ecuador, but also of the other States parties to the American Convention, to respect the rights of indigenous and tribal peoples. .

Reaffirmation of the obligation to obtain free, prior and informed consent

Precisely, one of the conditions that the Court should impose in this case, beyond simply consulting the community, is obtaining their free, prior and informed consent, since it is an extractive project that has a significant in the welfare and rights of the Sarayaku People. Therefore, the case could serve the Inter-American Court to delve into the scope of this right.

The obligation to consult is being criticized by the States because, according to them, it constitutes a brake on their “development”. However, it is essential considering that the territories are the basis for the survival of indigenous and tribal peoples. A study by the UN Rapporteur on the rights of indigenous peoples regarding the consequences of large-scale development projects on the rights of indigenous communities, observes that as a consequence of these activities, indigenous peoples are victims of "profound social and economic changes that the competent authorities are often unable to understand, let alone foresee. Large-scale development projects will inevitably affect the living conditions of indigenous peoples. Sometimes the effects will be beneficial, very often devastating." The Rapporteur, in his report referring to his visit to Ecuador in 2006, recommended that the concessions granted to oil companies be reviewed.

Read the Judgment of the SARAYAKU CASE by the Inter-American Court of Human Rights Sarayaku Case Judgment