The ruling of the Inter-American Court of Human Rights of November 23, 2015 in the case of Kalina and Lokono Peoples v. Suriname (Series C, No. 309).
The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).
Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. Then the complaint was communicated to Suriname.
In the case, the complaint on the protection of environmental and natural resources, taking into account the rights of indigenous peoples, was successfully considered.
Protecting environmental and natural resources, taking into account the rights of indigenous peoples.
Circumstances of the case
The peoples of Kalinya and Lokono are two of the four largest indigenous groups of Suriname. The case concerns the acts committed by the peoples of Kalinya and Lokono to obtain recognition by the state of their collective legal capacity and the right to collective ownership of their traditional territories, for which titles were missing. Parts of the disputed territory adjoined the settlements of the Ndyuka Marun tribe. For other disputed territories, non-indigenous third parties have acquired title deeds in areas bordering the Maroni River. Three nature reserves were created on the disputed territory: (i) the Via Via Nature Reserve in 1966, (ii) the Galibi Nature Reserve in 1969 and (iii) the Wayne Creek Nature Reserve in 1986. The Via Via and Galibi nature reserves were created to protect the coast, where sea turtles nested. At certain times, military posts were set up at access points to prevent members of indigenous communities from entering the latter reserve due to an increase in theft of turtle eggs. Wayne Creek Nature Reserve was created to protect and preserve ecosystems. Open pit mining was carried out in this reserve in the absence of the effective participation of these peoples in the consultation process. These operations have caused environmental degradation and limited hunting and fishing opportunities.
The lawsuit instituted by the Kalynia and Lokono peoples was rejected because indigenous members did not have the legal status of a collective person and did not have the title to collective property in the disputed territory, and administrative petitions sent to public officials did not receive a response.
For the purposes of this particular case, a delegation of the Inter-American Court of Human Rights (hereinafter referred to as the court), headed by its chairman, has traveled to the territory.
QUESTIONS OF LAW
(a) Article 3 (the right to be recognized as a legal personality) in relation to Articles 1 (1) (the obligation to respect rights and freedoms without any discrimination), 2 (the meaning of domestic law), 21 (the right to property) and 25 (the right to judicial protection) of the American Convention on Human Rights (hereinafter - ACHR). The court recalled its practice in previous cases regarding Suriname and determined that, since the law of the state does not recognize the collective personality of indigenous and tribal peoples, the state violated article 3 in relation to article 2 of the ACHR. It also entailed a violation of other rights recognized in Articles 1 (1), 21 and 25 of the ACHR.
The case has violated the requirements of Article 3 of the ACHR (pronounced by six votes in favor and one against).
(b) Articles 21 and 23 (political rights) in relation to Articles 1 (1) and 2 of the ACHR. As regards the right to collective property, the court concluded that the state’s avoidance of restriction, demarcation and transfer of title to the territories of the Kalyne and Lokono peoples violated the right to collective property provided for in article 21 of the ACHR, as well as the obligation to adopt the national legislative requirements established by article 2. It He also indicated that the state should, through the consultation procedure, determine the territories belonging to the peoples of Kalinya and Lokono, as well as demarcate and transfer the title to these territories, guaranteeing effective ownership and use of these lands. In this regard, the court noted that the state should also respect the rights of the Maroon communities or their members in this area. As regards the individual property titles granted to non-indigenous third parties, the court found that the right to request restitution of the territory remains valid and that the state must thus match private or state property interests with the territorial rights of members of indigenous communities.
The court noted that the establishment of reserves and the provision of mining concessions took place before Suriname joined the ACHR and recognized the jurisdiction of the court in 1987. Therefore, the court took into account its jurisdiction ratione temporis in respect of the relevant disputes.
Regarding the alleged preservation of nature reserves in the traditional territory, the court determined that the peoples of Kalinya and Lokono have the right to demand the possible restitution of lands corresponding to their traditional territory in accordance with domestic law, and in this regard, the state must weigh the rights that are affected, that is, the collective rights of the Kalynia peoples and curls with environmental protection as part of the public interest.
In addition, the court found that it was important to refer to the need to ensure compatibility between guaranteeing protected areas and adequate ownership and use of traditional indigenous territories. The court decided that the protected area consists not only of the biological dimension, but also of the sociocultural dimension, and thus requires an interdisciplinary and collaborative approach.
Accordingly, the court concluded that, in principle, the protection of natural zones is compatible with the right of indigenous and tribal peoples to protect natural resources in their territories. He also emphasized that, due to the relationship between nature and their way of life, indigenous and tribal peoples made an important contribution to the conservation of nature. In this regard, the following criteria: (a) effective participation, (b) access to and use of traditional territories, and (c) the possibility of benefiting from conservation, provided that they are compatible with protection and sustainable use, are essential elements for achieving compatibility, which should be evaluated by the state. Accordingly, the court ruled that the state should have adequate mechanisms for the implementation of these criteria.
In addition, the court noted that the participation of indigenous communities in environmental conservation is not only a matter of public interest, but also forms part of the exercise of their right as indigenous peoples "to participate in the decision-making process on issues that affect their rights ... in accordance with their own procedures and ... institutions "(Article 18 of the UN Declaration on the Rights of Indigenous Peoples, Resolution 61/295, September 13, 2007).
As regards the negative impact on nature reserves, the court found that in the present case the violation did not result from the lack of exclusive management and monitoring of nature reserves by indigenous peoples. At the same time, the court verified the absence of direct mechanisms guaranteeing the access, use and effective participation of the indigenous peoples of Kalinya and Lokono in the conservation of nature reserves and the benefits arising from it.
With regard to the mining concession in the Wayne Creek Reserve, the court indicated that the state should ensure (a) the effective participation of indigenous and tribal members in relation to any development, investment, research or mining plans implemented in their territory, (b) obtaining reasonable benefits for them and (c) non-granting of concessions on their territory until independent and technically qualified authorities under state control conduct a preliminary assessment of social and environmental impacts. The court also decided that the state should, for the purposes of the present case, establish mechanisms for the effective participation of indigenous peoples, using procedures that are culturally adapted for decision-making by such peoples. The court found that it was not only a matter of public interest, but it was also part of the exercise of their right to participate in decisions on matters affecting their interests, in accordance with their own procedures and institutions in relation to article 23 of the ACHR.
In addition, the court indicated that the obligation of the state to ensure effective participation through the consultation process is applied before any actions that may have an important impact on the interests of indigenous and tribal peoples, such as the stages of exploration and exploitation or production. Thus, the guarantee of effective participation must be put in place before the start of mining operations for mining or exploitation, which did not take place in this case. In addition, social and environmental impact assessments were not carried out, and the benefits of the mining project were not shared.
The court noted that even if Wayne Creek Nature Reserve was created to protect and preserve unique ecosystems in a part of the territory belonging to traditional lands, the extraction of bauxites caused serious damage to the environment and natural resources necessary for the survival and development of the Kalinya and Lokono peoples. In this regard, mining companies have introduced a specific policy for the rehabilitation of the zone, but so far the measures taken have not responded satisfactorily to the rehabilitation of the area. Thus, the court concluded that the state had an obligation to protect the zones of the nature reserve and traditional territories to prevent damage to native lands, even if the damage was caused by third parties. This should be achieved through appropriate oversight and monitoring mechanisms, in particular, oversight and monitoring of environmental impacts.
In the present case, mining, which had a negative impact on the environment and, therefore, on the rights of indigenous peoples, was carried out by private agents. In this regard, the court noted the “Guidelines on Business and Human Rights,” endorsed by the UN Human Rights Council, which found that entrepreneurs should respect and protect human rights, as well as prevent, mitigate and be held accountable for negative consequences for human rights, directly related to their activities. The court recalled that “states must protect against human rights violations within their territory and / or jurisdiction by third parties, including business entities. This requires the adoption of appropriate measures to prevent, investigate, punish and redress such violations through effective policies, legislation, regulation and legal proceedings."
Principle 1 of the Guidelines on Business and Human Rights: Implementation of the Framework for Protection, Compliance and Remedies. Report of the Special Representative of the Secretary-General for Human Rights and Transnational Corporations and Other Entrepreneurial Entities John Ruggie, A / HRC / 17/31, March 21, 2011.
The case has violated the requirements of Articles 21 and 23 of the ACHR (pronounced by six votes in favor and one against).
(c) Article 25 (right to judicial defense) in relation to Articles 1 (1), 2 and 13 (freedom of thought and expression) of the ACHR. As regards the remedies in accordance with the national law on the protection of collective rights, the court decided that the norms analyzed in the case did not include appropriate and effective administrative or judicial remedies that established procedures for protecting the collective right of indigenous and tribal peoples. The court found that national remedies should be interpreted and applied to ensure the human rights of indigenous peoples, and indicated various criteria on this issue. The court also decided that the trials and petitions filed were not effective and that the state failed to ensure the provision of public information requested by the representatives or did not justify the impossibility of transmitting it.
The case has violated the requirements of Article 25 of the ACHR (pronounced with six votes in favor and one against).
(d) Compensation. The Inter-American Court ruled that this ruling is in itself a form of compensation, and, in particular, obliged the state to (i) provide the peoples of Kalinya and the local legal recognition of collective legal personality; (ii) determine, demarcate and grant a collective title to the territory of the members of the Kalinya and Lokono peoples and ensure their effective possession and use, taking into account the rights of other tribal peoples of the zone; (iii) determine the territorial rights of the peoples of Kalinya and Lokono in cases where the disputed land belongs to the state or to non-indigenous and tribal third parties; (iv) take appropriate measures to ensure access, use and participation of the peoples of Kalinya and Lokono in the Galibi and Wayne Creek nature reserves; (v) take the necessary measures to ensure that activities that may have an impact on traditional territory are not carried out, since the above-mentioned procedures for the effective participation of the peoples of Kalinya and Lokono are not guaranteed; (vi) implement sufficient and necessary measures to rehabilitate the affected area in Wayne Creek Nature Reserve; (vii) create a community development fund for members of the peoples of Kalinya and Lokono; (viii) take the necessary measures in favor of the indigenous and tribal peoples in Suriname to: (a) recognize the collective legal personality, (b) create an effective mechanism for determining, demarcating and transferring the title in their territory, (c) establish national remedies or adapt existing ones to ensure collective access to justice, (d) ensure procedures for the effective participation of these peoples, the implementation of social and environmental impact assessments and benefit-sharing.