I/A Court H.R., Case of the Saramaka People. v. Suriname. Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 28, 2007 Series C No. 172.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2008-1-e.pdf

 

Headnotes:

 

The Court's jurisprudence regarding indigenous peoples' right to property is applicable to tribal peoples because both share distinct social, cultural, and economic characteristics, including a special relationship with their ancestral territories.

 

Members of tribal and indigenous communities have the right to own the natural resources they have traditionally used within their territory for the same reasons that they have a right to own the land they have traditionally used and occupied for centuries. Without them, the very physical and cultural survival of such peoples is at stake.

 

Pursuant to Article 21 ACHR, a State may restrict the use and enjoyment of property so long as the restrictions are:

 

a. previously established by law;

b. necessary;

c. proportional; and

d. have the aim of achieving a legitimate objective in a democratic society. Additionally, a State may restrict the property rights of tribal and indigenous communities involving any development, investment, exploration or extraction plan in their traditional territory only if said plan does not result in a total denial of the communities survival and means of subsistence.

 

Accordingly, a State Party must

 

e. ensure the effective participation of the indigenous or tribal people in such plans, in conformity with their customs and traditions;

f. guarantee that the tribal or indigenous people will receive a reasonable benefit from any such plan within their territory, and

g. ensure that independent and technically capable entities, with the State's supervision, perform a prior environmental and social impact assessment.

 

The right to have their juridical personality recognised by the State is one of the special measures owed to indigenous and tribal groups in order to ensure that they are able to use and enjoy their territory in accordance with their own traditions. This is a natural consequence of the recognition of the right of members of indigenous and tribal groups to enjoy certain rights in a communal manner.

 

In order to guarantee members of indigenous and tribal peoples their right to communal property, States must establish effective means with due process guarantees for them to claim traditional lands.

 

Summary:

 

I. The State of Suriname had issued a number of timber logging and gold mining concessions inside territory that presumably belonged to the Saramaka people, a tribe whose descendants were African slaves brought to Suriname during the European colonisation in the 17th century. The tribe claimed to have communal property rights over its ancestral territory and alleged that the current domestic legal system did not allow them effective access to the judicial system in order to remedy possible violations of said rights.

 

On 23 June 2006, the Inter-American Commission on Human Rights (hereinafter "the Commission") submitted an application against the State of Suriname to determine whether the State had violated Article 21 ACHR (Right to Property) and Article 25 ACHR (Right to Judicial Protection), in conjunction with Articles 1.1 and 2 ACHR, to the detriment of the Saramaka people.

 

II. In its judgment of 28 November 2007, the Court declared that the members of the Saramaka people are to be considered a tribal community, and that Article 21 ACHR protects the right of the members of tribal peoples to the use and enjoyment of communal property in their ancestral territory, including those natural resources traditionally used and necessary for the very survival, development and continuation of such people's way of life. Thus, the Court declared that the State had an obligation to adopt special measures to recognise, respect, protect and guarantee this right in order to guarantee the survival of the Saramaka people. The Court held that the timber logging and gold mining concessions issued inside traditional Saramaka territory violated their right, recognised in Article 21 ACHR, to use and enjoy their communal property, and that, pursuant to Article 2 ACHR, Suriname's legal framework was deficient insofar it merely granted the members of the Saramaka people a privilege to use land, which does not guarantee the Saramaka people's right to effectively control their territory without outside interference. Thus, the Court held that the State violated its duty to recognise the right to property of members of the Saramaka people, within the framework of a communal property system, and to establish the mechanisms necessary to give domestic legal effect to such right recognised in the Convention.

 

Finally, the Court concluded that the State violated the right to judicial protection recognised in Article 25 ACHR, in conjunction with Articles 21 and 1.1 ACHR, to the detriment of the members of the Saramaka people because Suriname's domestic provisions did not provide adequate and effective legal recourses to protect the Saramaka people against acts that violate their right to property. In this regard, the Court also declared that the State must recognise the juridical personality of the members of the Saramaka people, in accordance with Article 3 ACHR, so that they mayaccess the judicial system in order to address possible violations of their right to communal property.

 

To guarantee the non-repetition of the violation of the Saramaka peoples' rights to property, judicial protection, and the recognition of their juridical personality, the Court ordered the State:

 

a. to delimit, demarcate, and grant collective title over the territory of the members of the Saramaka people, in accordance with their customary laws, and through previous, effective and fully informed consultations with the Saramaka people, without prejudice to other tribal and indigenous communities;

b. to grant the members of the Saramaka people legal recognition of their collective juridical capacity;

c. to remove or amend the legal provisions that impede protection of the right to property of the members of the Saramaka people and adopt legislative, administrative, and other measures as may be required to recognise, protect, guarantee and give legal effect to the right of the members of the Saramaka people to hold collective title of the territory they have traditionally used and occupied;

d. to adopt legislative, administrative and other measures necessary to recognise and ensure the right of the Saramaka people to be effectively consulted;

e. to ensure that environmental and social impact assessments are conducted by independent and technically competent entities, prior to awarding a concession for any development or investment project within traditional Saramaka territory; and

f. to adopt legislative, administrative and other measures necessary to provide the members of the Saramaka people with adequate and effective recourses against acts that violate their right to the use and enjoyment of property in accordance with their communal land tenure system.