Rights of indigenous peoples - collective rights - recognition of legal personality - right to communal property - conflict between nature reserves and indigenous land - free, prior, and informed consultation - environmental impact - restitution and reparation.

Author:Lixinski, Lucas

CASE or THE KALINA AND LOKONO PEOPLES v. SURINAME. Series C, No. 309. Merits, Reparations and Costs. At http://www.corteidh.or.cr.

Inter-American Court of Human Rights, November 25, 2015.

On November 25, 2015, the Inter-American Court of Human Rights (Court) held that the state of Suriname had violated the rights of two indigenous groups by denying recognition of their juridical personality and their entitlement to collective property and judicial protection. In Kalina and Lokono Peoples v. Suriname, (1) the Court also considered the impact of nature reserves on indigenous land rights, as well as the legitimacy of private titling of property that encroaches on land for which collective title has not been attained. The decision pushes the Court's previous jurisprudence significantly--and somewhat controversially--by asserting that under the American Convention on Human Rights, (2) indigenous peoples are entitled, as collective entities, to recognition of their legal personality. In so doing, the Court challenged ordinary assumptions about the individualized character of most adjudication regarding international human rights and made the possibility of enforcing collective rights more palpable.

Initially filed with the Inter-American Commission on Human Rights (Commission) in 2007, (3) the case involved eight communities of the Kalina and Lokono indigenous peoples of the Lower Marowijne River in Suriname. They claimed the state had not established a legal and regulatory framework recognizing their rights to collective ownership of their traditional lands and natural resources, but had instead issued individual property titles to non-indigenous persons, granted concessions and licenses to carry out mining operations, and established three separate nature reserves in part of their ancestral territory, without their consent and to their detriment. Moreover, they argued, the state's procedures for granting the mining concessions and licenses and establishing the nature reserves did not include mechanisms for consultation or obtaining their free, prior, and informed consent. Because they lacked legal personality, they contended, they were unable to exclude others from their ancestral lands, to challenge mining concessions, or to contest the creation of nature reserves in their traditional territories.

The Court's judgment rested not only on the parties' submissions, its own observations, and the Commission's findings, but also on its own prior jurisprudence, in particular its 2007 and 2008 judgments in Saramaka People v. Suriname. (4)

The Court began by recounting the relevant factual basis, including the traditional governance structures of the two indigenous peoples and their "special physical and spiritual relationship with their lands and natural resources," remarking that "[t]hey consider that all the animals, plants, fish, stones, streams and rivers are interconnected living beings that have protective spirits" (para. 33). It also discussed some of their history, such as during the civil war that followed Suriname's independence in 1975 from The Netherlands, and their clashes with Maroon communities (paras. 40-49), noting that this troubled relationship had created disincentives for titling and allowed encroachment from other directions.

The Court described the creation of three nature reserves, which, taken together, encompassed nearly 50 percent of the territory in dispute in the case (para. 70). The Court discussed restrictions imposed on the indigenous peoples by the state's creation of these reserves that were based on the following grounds: environmental protection; mining concessions; or private land title. Regarding environmental protection, the designation of certain land as reserves transformed it into state property upon which hunting and fishing were forbidden without exceptions for indigenous peoples (paras. 70-73), alongside other restrictions based on designation of one of the reserves as an environmental conservation area of international significance (para. 82). With respect to mining, the Court took note of the adverse environmental consequences resulting from certain bauxite mining operations in the Wane Kreek reserve, pursuant to a 1958 concession agreement that also restricted use of the area for hunting and fishing (para. 90). The mining operations also impacted fishing and hunting stocks considerably (paras. 88-93). Regarding private land title, the Court observed that in 1975, the state began construction of an urban subdivision project, which included vacation homes for the wealthy (as well as a casino, gas station, and mall), resulting in the displacement of indigenous people from the area and restricting their direct access to certain parts of the Marowijne River, with which the local indigenous peoples have a strong spiritual relationship (paras. 96-99).

The Court then turned to a discussion of the first main area of dispute--namely, whether Suriname's refusal to recognize the right of the indigenous peoples to collective juridical personality denied the Kalina and Lokono peoples the ability to maintain, exercise, and seek the protection of their collective property and other rights under domestic law, in violation of Article 3 of the Convention. In Saramaka, the Court had held that recognizing the juridical personality of indigenous peoples is "one of the special measures that should be granted to the indigenous and tribal groups in order to ensure that they may enjoy their territories according to their traditions" (para. 107), while also observing that doing so is

one way, although not the only way, to ensure that the community as a whole may enjoy and exercise fully the right to property, in accordance with their system of communal...

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