A/HRC/36/56 58. Even in draft form, the Declaration has been applied. In the 2006 case of Roy Sesana and others v. Attorney General of Botswana,49 the Court used the draft Declaration to rule in favour of the Basarwa (San) indigenous peoples, who were being evicted from their ancestral lands without their consent and unlawfully, and to rule that the refusal to allow them to return had been unconstitutional. 59. Similarly, in the case of Lemeiguran v. Attorney General and ors, relating to the IL Chamus people, where the applicant indigenous peoples claimed a violation of their constitutional right to participate in decision-making through elections, a Kenyan court ruled in favour of the applicant, on the basis of several provisions in the draft Declaration. 60. On 3 April 2014, the Supreme Court of Belize 50 ruled that permits that had been granted to an oil company for drilling and road construction had been unreasonable and unlawful. It decided that, having voted in favour of the Declaration, the State was clearly bound to uphold the general principles of international law contained therein. It confirmed that the Government had an obligation to recognize the collective land ownership of the concerned communities and also to obtain their free prior and informed consent before awarding concessions on their territories within the meaning of article 32 (2), as defined by the Special Rapporteur on the rights of indigenous peoples.51 61. In 2009, the Supreme Court of Chile 52 invoked indigenous peoples’ right to protection of the environment in granting a petition for protection on the grounds that a forestry company had adversely affected the wetlands of the Mapuche community. In its decision, it referred to article 29 of the Declaration to the extent that indigenous peoples have the right to conservation and protection of the environment. 62. In the Independencia aqueduct case, the Supreme Court of Mexico in 201253 ordered the State to consult with the Yaqui tribe to determine whether the construction of the Independencia aqueduct, for the purposes of carrying water from the Yaqui river to the city of Hermosillo, would cause any irreversible damage. If so, construction should be stopped. The Court relied on article 19 of the Declaration, ILO Convention No. 169 and the decision in the Sarayaku case (see para. 42 above). It held that prior consultation should be culturally appropriate, informed and conducted in good faith. This was the first time in Mexico that inter-American standards regarding the indigenous communities’ right to consultation had been acknowledged by the Supreme Court. Unfortunately, enforcement of the decision has been slow. 63. In Álvaro Bailarín et al., in 2011,54 the Constitutional Court of Colombia ruled that, for development plans (in this case exploration and extractive activities of mineral resources) that have a major impact on indigenous territories, the State must not only consult with indigenous peoples but must also obtain their free prior and informed consent. In its decision, it made a reference to the State’s obligations to abide by international law, including the Declaration.55 64 Several courts in Canada have cited the Declaration, including the Batchewana case, in 2017,56 where a judge of the Ontario Court of Justice, ruled that the Crown must pay the legal fees of the defendants (from the Batchewana First Nation) in a criminal case after the Government withdrew nearly eight-year-old charges against indigenous men who had been 49 50 51 52 53 54 55 56 See www1.chr.up.ac.za/index.php/browse-by-country/botswana/1118.html. The Supreme Court of Belize, A.D. 2014, Claim No. 394 of 2013: http://www.belizejudiciary.org/web/wp-content/uploads/2014/01/Supreme-Court-Claim-No-394-of2013-Sarstoon-Temash-Institute-for-Indigenous-Management-et-al-v-The-Attorney-General-ofBelize-et-al-.pdf The Court referred to A/HRC/12/34, paras. 62-63 and 72. See www.politicaspublicas.net/panel/jp/462-2009-linconao.html. See www.escr-net.org/caselaw/2013/amparo-no-6312012-independencia-aqueduct. See Judgment No. T-129 of 3 March 2011. Available in Spanish from www.corteconstitucional.gov.co/relatoria/2011/T-129-11.htm. It did not specify any particular rights of the Declaration in the decision. See www.supremeadvocacy.ca/wp-content/uploads/2017/02/R-v-Sayers-Robinson-SwansonRobinson-2017-OCJ-web.pdf. 15