I/A Court H.R., Case of the Kaliña and Lokono Peoples v. Suriname. Merits, Reparations and Costs. Judgment of November 25, 2015. Series C No. 309.

Non official brief

 

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

 

Facts – The Kaliña and Lokono peoples represent two of the four largest indigenous populations in Suriname. This case relates to the actions taken by the Kaliña and Lokono peoples to obtain the State’s recognition of their collective juridical personality and their right to collective ownership of their traditional territories, lands for which titles have not been issued. Parts of the territory claimed adjoin settlements of the N’djuka Maroon tribe. For other claimed areas, non-indigenous third parties were granted property titles on lots bordering the Marowijne River. Inside the territory claimed, three nature reserves were established: (i) the Wia Wia Nature Reserve in 1966, (ii) the Galibi Nature Reserve in 1969, and (iii) the Wane Kreek Nature Reserve in 1986. fte Wia Wia and Galibi Nature Reserves were established to protect the beaches where sea turtles nest. During certain periods, military posts were established at access points to prevent members of the indigenous communities from accessing the latter reserve due to an increase in the theft of turtle eggs. The Wane Kreek Nature Reserve was established to protect and conserve ecosystems. Open-cast mining operations to extract bauxite have been carried out in this reserve, without the effective participation of these peoples through a consultation process. These operations have caused problems stemming from environmental degradation and a decline in the possibility of hunting and fishing.

 

The judicial proceedings filed by the Kaliña and Lokono peoples were dismissed because the members of the indigenous peoples lacked legal standing as a collective entity and did not possess a collective property title to the territory claimed, and the administrative petitions presented to public officials were not answered.

 

For the purposes of this specific case, a delegation of the Tribunal headed by the President of the Court held an on-site visit to the territory.

Law

(a)     Article 3 (right to recognition of juridical personality) in relation to Articles 1(1) (obligation to respect and ensure rights without discrimination), 2 (domestic legal effects), 21 (right to property) and 25 (right to judicial protection) of the American Convention on Human Rights (ACHR) – The Court reiterated its jurisprudence in previous cases concerning Suriname and determined that since the State’s domestic law did not recognise the collective legal personality of the indigenous and tribal peoples, the State had violated Article 3, in relation to Article 2 of the ACHR. This also led to the violation of other rights recognised in Articles 1(1), 21 and 25 of the ACHR.

Conclusion: violation (six votes to one).

 

(b)     Articles 21 and 23 (political rights) in relation to Articles 1(1) and 2 of the ACHR – With regard to the right to collective ownership, the Court concluded that the State’s failure to delimit, demarcate and grant title to the territory of the Kaliña and Lokono peoples violated the right to collective property recognised in Article 21 of the ACHR, as well as the duty to adopt domestic legal provisions established in Article 2 thereof. It also indicated that the State should, through a consultation process, delimit the territories that correspond to the Kaliña and Lokono peoples, and also demarcate and grant title to these territories, guaranteeing the effective use and enjoyment of these lands. To this end, the Court indicated that the State should also respect the rights of the Maroon communities or their members in the area. With regard to individual property titles issued to non-indigenous third parties, the Court found that the right to request the restitution of the territory remained valid, and that the State should therefore weigh the private or State territorial interests against the territorial rights of the members of the indigenous communities.

 

The Court noted that the establishment of nature reserves and the granting of a mining concession had occurred before Suriname acceded to the ACHR and accepted the Court’s contentious jurisdiction in 1987. Therefore, the Court took into account its jurisdiction ratione temporis in relation to the respective disputes.

 

Regarding the alleged maintenance of the nature reserves in the traditional territory, the Court determined that the Kaliña and Lokono peoples had the right to claim the possible restitution of the lands corresponding to their traditional terri- tory under domestic law, and, in this regard, the State must weigh the rights involved, that is, the collective rights of the Kaliña and Lokono peoples against the protection of the environment as part of the public interest.

 

Also, the Court considered that it was important to refer to the need to ensure compatibility between the safeguard of protected areas and the adequate use and enjoyment of the traditional territories of indigenous peoples. Thus, the Court found that a protected area consisted not only of its biological dimension, but also of its socio-cultural dimension and that, therefore, an interdisciplinary and participatory approach was required.

 

Accordingly, the Court concluded that, in principle, the protection of natural areas was compatible with the right of the indigenous and tribal peoples to the protection of the natural resources in their territories. It also emphasised that, owing to their interrelationship with nature and their way of life, the indigenous and tribal peoples can make an important contribution to nature conservation. Thus, the criteria of: (a) effective participation; (b) access to and use of their traditional territories; and (c) the possibility of obtaining benefits from conservation – all of the foregoing provided they were compatible with protection and sustainable use – were essential elements to achieve the compatibility that should be evaluated by the State. Consequently, the Court held that the State must have adequate mechanisms to implement those criteria.

 

Additionally, the Court noted that the participation of the indigenous communities in the conservation of the environment is not only a matter of public interest, but also forms part of the exercise of their right as indigenous peoples “to participate in decision-making in matters which would affect their rights, […] in accordance with their own procedures and […] institutions.”[1]

 

Regarding the adverse effects on the nature reserves, the Court found that, in this case, there was no violation derived from the lack of exclusive management and monitoring of the nature reserves by the indigenous peoples. However, the Court did verify the absence of explicit mechanisms that guaranteed the access, use and effective participation of the Kaliña and Lokono indigenous peoples in the conservation of the nature reserves and the benefits derived therefrom.

 

Regarding the mining concession within the Wane Kreek Nature Reserve, the Court held that the State had to comply with ensuring: (a) effective participation of the members of the indigenous and tribal peoples with regard to any development, investment, exploration or extraction plans implemented within their territory; (b) that they receive a reasonable benefit, and (c) that no concession is granted within their territory until independent and technically-qualified entities, under the State’s supervision, have con- ducted a prior social and environmental impact assessment. The Court further decided that the State must, for the effects of this case, put in place mechanisms for the effective participation of the indigenous peoples using procedures that are culturally adapted to the decision-making of such peoples. The Court determined that this was not only a matter of public interest, but also formed part of the exercise of their right to take part in any decision-making on matters that affect their interests, in accordance with their own procedures and institutions, in relation to Article 23 of ACHR.

 

Furthermore, the Court held that the State’s obligation to ensure effective participation, through a consultation process, applied before any action was taken that could have an important impact on the interests of the indigenous and tribal peoples, such as the exploration and exploitation or extracting stages. Thus, the guarantee of effective participation should have been put into effect before the start of the mining extraction or exploitation operations, which did not happen in this case. Moreover, no social and environmental impact assessment had been made and the benefits of the mining project were not shared.

 

The Court noted that even if the Wane Kreek Nature Reserve was established in order to protect and conserve unique ecosystems in part of the territory claimed as traditional lands, the extraction of bauxite resulted in serious damage to the environment and to the natural resources necessary for the survival and development of the Kaliña and Lokono peoples. In this regard, the mining companies had put in place certain policies for the area’s rehabilitation, but to date the actions taken had not met the satisfactory rehabilitation of the territory in question. Therefore, the Court concluded that the State had the obligation to protect the areas of both the nature reserve and the traditional territories in order to prevent dam- age to the indigenous lands, even damage caused by third parties. This should be achieved through appropriate supervision and monitoring mechanisms, in particular by supervising and monitoring environmental impact assessments.

 

In this case, the mining activities that resulted in the adverse impact on the environment and, consequently, on the rights of the indigenous peoples, were carried out by private agents. In this regard, for the first time, the Court took note of the “Guiding Principles on Business and Human Rights,” endorsed by the Human Rights Council of the United Nations, which establish that businesses must respect and protect human rights, as well as prevent, mitigate, and accept responsibility for the adverse human rights impacts directly linked to their activities. Hence, the Court recalled that “States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.”[2]

Conclusion: violation (six votes to one).

 

(c)      Article 25 (right to judicial protection) in relation to Articles 1(1), 2 and 13 (freedom of thought and expression) of the ACHR – Regarding the remedies under domestic law to protect collective rights, the Court held that the norms analysed in this case did not include appropriate and effective administrative or judicial remedies that established procedures to protect the right to collective property of indigenous and tribal peoples. Thus, the Court found that domestic remedies should be interpreted and applied to ensure the human rights of the indigenous peoples, and it specified various criteria on the matter. The Court also found that the judicial proceedings and the petitions filed had not been effective and that the State had not provided the public information requested by the representatives or justified the impossibility of handing it over.

Conclusion: violation (six votes to one).

 

(d)     Reparations – The Court established that the judgment constituted per se a form of reparation and ordered, inter alia, that the State: (i) grant the Kaliña and Lokono peoples legal recognition of collective juridical personality; (ii) delimit, demarcate and grant collective title to the territory of the members of the Kaliña and Lokono peoples, and ensure their effective use and enjoyment, taking into account the rights of other tribal peoples in the area; (iii) determine the territorial rights of the Kaliña and Lokono peoples in cases in which the land claimed is owned by the State or by non-indigenous and non-tribal third parties; (iv) take the appropriate measures to ensure the access, use and participation of the Kaliña and Lokono peoples in the Galibi and Wane Kreek Nature Reserves; (v) take the necessary measures to ensure that no activities are carried out that could have an impact on the traditional territory while the above-mentioned pro- cesses for the effective participation of the Kaliña and Lokono peoples have not been guaranteed; (vi) implement the sufficient and necessary measures to rehabilitate the affected area in the Wane Kreek Nature Reserve; (vii) create a community development fund for the members of the Kaliña and Lokono peoples; (viii) take the necessary measures in favour of the indigenous and tribal peoples in Suriname to: (a) recognise collective juridical personality; (b) establish an effec- tive mechanism for delimiting, demarcating and titling their territories; (c) establish domestic remedies, or adapt those that exist, in order to ensure effective collective access to justice; (d) ensure effective participation processes for these peoples, the execution of social and environmental impact assessments, and the distribution of benefits.



[1] Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples, Resolution 61/295, 13 September 2007.

[2] Principle 1 of the UN Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, A/HRC/17/31, 21 March 2011.