Humberto antonio sierra porto and eduardo ferrer mac-gregor poisot case of the kali

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(Merits, Reparations and Costs)
1. We have prepared this concurring opinion with regard to two issues dealt with in the judgment in the case of the Kaliña and Lokono Peoples v. Suriname, namely: (i) the guarantees of collective property in relation to the mining concession within the Wane Kreek Nature Reserve, particularly with regard to the right to effective participation through a consultation process, and (ii) the recognition of collective juridical personality.
2. With regard to the first point, in this judgment the Court established that:
200. As previously noted, in 1958, Suriname granted Suralco a mining concession until 2033, for the extraction of bauxite in the eastern part of the country. In 1997, the company started up its operations to extract bauxite from deposits in an area of approximately 100 to 144 hectares, within the Wane Kreek Nature Reserve, known as Wane Kreek 1 and 2 (supra paras. 88 and 90). Preparatory work, such as the construction of a highway to reach the mine and transport the mineral, was initiated in the mid-1990s (supra para. 89). There is no dispute about the fact that the Kaliña and Lokono peoples played no part in any of these activities and that the corresponding environmental impact assessment was not made (infra para. 213). However, the Court does not have competence in relation to the award of the mining concession in 1958. Nevertheless, the Court is competent to examine measures taken following the entry into force of its jurisdiction; in particular, the extraction operations carried out as of 1997.

201. In this regard, the Court has already established in the case of the Saramaka People v. Suriname that, under Article 1.1 of the Convention, in order to ensure that the restrictions imposed on the right to property of the indigenous and tribal peoples owing to the issue of concessions within their territory do not entail a denial of their survival, the State must comply with the following three guarantees: “first, it must ensure the effective participation of the members of the [indigenous and tribal peoples], in accordance with their customs and traditions, with regard to any development, investment, exploration or extraction plans (hereinafter “development or investment plan”) implemented within [their territory]. Second, the State must ensure that the members of the [indigenous and tribal peoples] receive a reasonable benefit from the plan implemented within their territory. Third, the State must ensure that no concession will be granted within their territory until independent and technically-qualified entities, under the State’s supervision, have conducted a prior social and environmental impact assessment. These safeguards are intended to preserve, protect and ensure the special relationship that the members of the [indigenous and tribal peoples] have with their territory, which, in turn, ensures their survival [as an indigenous people].” In the instant case, the Court will analyze the State’s alleged failure to comply with these safeguards in relation to the start-up of bauxite extraction operations in 1997.

202. Furthermore, the Court reiterates that Article 23 of the American Convention establishes that: “[e]very citizen shall enjoy the following rights and opportunities: (a) to take part in the conduct of public affairs […].” Similarly, Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples establishes that “[i]ndigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives […],” and the pertinent part of Article 32 stipulates that “States shall consult and cooperate in good faith […] prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the […] utilization or exploitation of mineral […] resources.”

203. Consequently, in order to ensure the use and enjoyment of the right to indigenous collective property recognized in Articles 1.1 and 21 of the Convention, in relation to the utilization or exploitation of natural resources in their traditional territory, 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. This is not only a matter of public interest, but also forms 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 the American Convention (supra para. 196).

3. In this regard, we are essentially in agreement with the majority of the Court in the sense of reiterating the safeguards established by the Court in its case law in relation to investment or development projects in indigenous or tribal territory. In particular, the State’s obligation to organize an effective participation process, implemented by means of prior, free and informed consultation.

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