The Inter-American Court of Human Rights (IACtHR) has issued its judgment in the case of Kaliña and Lokono Peoples v. Suriname, which concerns interference with two indigenous communities’ claim to and use of their traditional territories due to mining operations, the establishment of nature reserves, and the provision of property titles to other individuals. [IACtHR Press Release] The judgment, adopted by the IACtHR on November 25, 2015, declares that Suriname is responsible for the violation of the rights to recognition of juridical personality, property, political participation, and access to information based on the State’s failure to: recognize the legal agency of indigenous and tribal peoples, evaluate their claims to collective title to the territory, ensure their access to and participation in the nature reserves, and weigh the communities’ input and the social and environmental impact when determining whether to grant mining concessions. See I/A Court H.R., Kaliña and Lokono Peoples v. Suriname. Merits, Reparations and Costs. Judgment of November 25, 2015. Series C No. 309.
Leaders of indigenous communities in Suriname originally lodged the petition with the Inter-American Commission on Human Rights (IACHR) in February 2007, on behalf of the Kaliña and Lokono peoples. See IACHR, Report N° 76/07, Petition 198-07, Kaliña and Lokono Peoples (Suriname), 15 October 2007. The case was then submitted to the IACtHR by the IACHR in January 2014, after the IACHR failed to receive concrete evidence that Suriname had implemented the recommendations made in its July 2013 report on the merits of the case. [IACHR Press Release]
Eight indigenous communities are party to this case. See id. Six of these communities are Kaliña and two are Lokono See IACHR, Report N° 76/07, Petition 198-07, Kaliña and Lokono Peoples (Suriname), 15 October 2007. The alleged violations put forth by the indigenous communities involve the legal framework in Suriname, which prevents the recognition of their legal personality. See id. Further, the State does not have laws that provide for the communities’ right to collective ownership of property, which encompasses land, territory, and natural resources. See id. They asserted that the State’s failure to recognize these rights has resulted in the issuance of property titles to non-indigenous third parties, the establishment of three nature reserves, and mining operations on the communities’ traditional territories. [IACHR Press Release]
The petitioners have maintained, among other claims, that these various developments have taken place within their territories without their prior, free, and informed consent and that Suriname lacks an effective domestic remedy through which to raise their claim. [IACHR Press Release]
In determining the issue on juridical personality, the IACtHR referred to its previous case law, in which it has emphasized that legal recognition is one of many ways that an indigenous community may enjoy and exercise the right to property, as well as the right to judicial protection. See I/A Court of H.R., Saramaka People v. Suriname. Preliminary Objections, Merits, Costs, and Reparations. Judgment of November 28, 2007. Series C No. 172. In this case, the IACtHR held that Suriname was in violation of Article 3 (right to juridical personality) of the American Convention on Human Rights because its domestic laws fail to recognize “the collective legal personality of the indigenous and tribal peoples.” See I/A Court H.R., Kaliña and Lokono Peoples v. Suriname. Judgment of November 25, 2015, paras. 112, 247.
The IACtHR also made note that Suriname’s failure to recognize the juridical personality of the Kaliña and Lokono has been observed by the Committee for the Elimination of Racial Discrimination of the United Nations, the UN Human Rights Committee, and the UN Special Rapporteur on the rights of indigenous peoples. See id. at para. 111.
Judicial Protection & Access to Information
With regard to the alleged lack of an effective remedy to protect indigenous peoples’ rights, the IACtHR noted that the State had not submitted any information to indicate that the domestic remedies – which it found to be “inappropriate and ineffective” in Saramaka People v. Suriname – had changed. Id. at para. 244. Recognizing Suriname’s request for guidance from the Court on bringing its legislation into compliance, the IACtHR clearly laid out the necessary characteristics of any domestic remedy intended to protect the rights of indigenous peoples. See id. at para. 251. In light of the lack of appropriate remedies, the State’s failure to meaningfully respond to the petitioners’ attempts at redress and to respond to their request for public information concerning the property titles, the IACtHR found Suriname responsible for a violation of Article 25 (judicial protection) of the American Convention. See id. at para. 242 et seq.
Although the parties had not alleged a violation of Article 13 (freedom of thought and expression), the Court considered it appropriate to analyze whether there had been a violation of this right, in connection with Article 25, based on the State’s failure to respond to the petitioners’ request for information. See id. at para. 259. Despite the absence of a specific domestic law or procedure concerning requests for public information, the Court emphasized that international law required Suriname to make prompt and reasoned determinations concerning such requests. See id. at para. 265. Because Suriname had failed to do so in this case, the Court found a violation of Article 25 in connection with Article 13. See id. at para. 268.
Property Rights & Participation in Government
Article 21 (right to property) of the American Convention recognizes the right of indigenous and tribal peoples to enjoy the use of their traditional territory and to freely determine their own economic and social development. See id. at paras. 123-127. Therefore, as to the right of collective ownership of traditional territories, the IACtHR found Suriname in violation of Article 21 of the American Convention where it failed to “delimit, demarcate and grant title” to the indigenous communities. See id.
It was undisputed that Suriname had created an urban subdivision project that granted free-hold and leasehold titles, as well as long-term leases, to non-indigenous people on the traditional lands of the Kaliña and Lokono. Further, an on-site visit by a delegation from the IACtHR verified that there were structures located on the traditional territory of the Kaliña and Lokono peoples belonging to non-indigenous third parties. See id. at paras. 14, 147.
Therefore, the IACtHR held that the Kaliña and Lokono have the right to request the restitution of property held by third party non-indigenous persons. See id. at para. 143 et seq. The IACtHR has instructed the State to settle the dispute between the indigenous communities and the individual title holders on a case-by-case basis, weighing private or State property interests against the territorial rights of the Kaliña and Lokono. See id. at para. 156-60.
The IACtHR found that due to the close and continuous relationship between the indigenous communities and the nature reserves, particularly in the Galibi and Wane Kreek reserves, that restitution may be possible. See id. at paras. 167-68. In making the decision as to whether or not the property should be returned, the IACtHR instructed the State to weigh the environmental concerns in favor of maintaining the nature reserve against the territorial rights of the Kaliña and Lokono peoples. See id. at para. 168.
The IACtHR found that the lack of specific systems in place to provide the access, use, and effective participation in two of the nature reserves, the Galibi and Wane Kreek, violated the various rights afforded in articles 2 (domestic legal effects), 21 (property), and 23 (participation in government) of the American Convention. See id. at para. 198.
As to the mining concessions that have been granted in the Wane Kreek Nature Reserve, the IACtHR held that the State violated articles 21 and 23 when it failed to ensure that a consultation process took place prior to the exploration and extraction of bauxite ore. See id. at paras. 199-230.
The IACtHR ordered various reparations for the victims. Some of these reparations include: legal recognition of collective juridical personality for the Kaliña and Lokono; ensuring access, use and participation in the Galibi and Wane Kreek Nature Reserves; and creating a community development fund for the members of the indigenous communities. See id. at para. 269 et seq. The IACtHR will deem the matter closed once the State has complied with all of its orders and will monitor Suriname’s compliance in the meantime.
This is not the first instance in which the IACtHR has held that a State failed to recognize the territorial and cultural rights of indigenous persons. In particular, the IACtHR has previously found that Suriname’s domestic laws are inadequate when it comes to the protection of indigenous and tribal people. See I/A Court of H.R., Saramaka People v. Suriname, Preliminary Objections, Merits, Costs, and Reparations. Judgment of November 28, 2007. Series C No. 172. In that case, the IACtHR similarly held that Suriname had violated Article 2 of the American Convention where it failed to recognize the Saramaka people’s right to juridical personality in relation to the right of property granted in Article 25 of the American Convention. See id. This was the first binding international decision that recognized the right to natural resources located within the territory of an indigenous or tribal group. [Amazon Watch]
Furthermore, in 2012, the IACtHR issued a landmark decision concerning Ecuador, where it affirmed the right to free, prior, and informed consent for indigenous communities where development on their traditional lands may affect the use and enjoyment of their lands. See I/A Court of H.R., Kichwa Indigenous People of Sarayaku v. Ecuador, Merits and Reparations. Judgment of June 27, 2012. Series C No. 245.