42
Saramaka people to reasonably share in the benefits made as a result of a restriction or
deprivation of their right to the use and enjoyment of their traditional lands and of those
natural resources necessary for their survival.
140. In this sense, the Committee on the Elimination of Racial Discrimination has
recommended not only that the prior informed consent of communities must be sought
when major exploitation activities are planned in indigenous territories, but also “that the
equitable sharing of benefits to be derived from such exploitation be ensured.”138 Similarly,
the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous peoples has suggested that, in order to guarantee “the human rights of
indigenous peoples in relation to major development projects, [States should ensure]
mutually acceptable benefit sharing […].”139 In this context, pursuant to Article 21(2) of the
Convention, benefit sharing may be understood as a form of reasonable equitable
compensation resulting from the exploitation of traditionally owned lands and of those
natural resources necessary for the survival of the Saramaka people.
F.
THE
FULFILLMENT OF THE GUARANTEES ESTABLISHED UNDER INTERNATIONAL LAW IN
RELATION TO THE CONCESSIONS ALREADY GRANTED BY THE
STATE
141. Having declared that the Saramakas’ right to use and enjoy their traditionally owned
lands necessarily implies a similar right with regards to the natural resources that are
necessary for their survival, and having set safeguards and limitations regarding the State’s
right to issue concessions that restrict the use and enjoyment of such natural resources, the
Court will now proceed to analyze whether the concessions already issued by the State
within Saramaka territory complied with the safeguards mentioned above.
142. In the present case, the evidence before the Court demonstrates that between 1997
and 2004, the State issued at least four logging concessions and a number of mining
concessions to both Saramaka and non-Saramaka members and foreign companies within
territory traditionally owned by members of the Saramaka community.140 Witness Rene
Somopawiro, the acting director of the State’s Foundation for Forest Management and
Production Control, recognized in his testimony before the Court that the State had issued
concessions within Saramaka territory.141 District Commissioner Strijk also declared that,
during his tenure, at least one logging concession was issued by the State within Saramaka
territory and that this concession was held by a non-Saramaka person or corporation.142
143. As mentioned above, Article 21 of the Convention does not per se preclude the
issuance of concessions for the exploration and exploitation of natural resources in
indigenous or tribal territories. Nonetheless, if the State wants to restrict, legitimately, the
Saramakas’ right to communal property, it must consult with the communities affected by
the development or investment project planned within territories which they have
traditionally occupied, reasonably share the benefits with them, and complete prior
assessments of the environmental and social impact of the project (supra paras. 126-129).
138
UNCERD, Consideration of Reports submitted by States Parties under Article 9 of the Convention,
Concluding Observations on Ecuador, supra note 136, para. 16.
139
U.N., Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, supra note 97, para. 66.
140
Map prepared by the Ministry of Natural Resources (case file of appendices to the application and appendix
1, appendix 16, folios 180-181).
141
Testimony of Rene Somopawiro, supra note 110 (transcription of public hearing, pp. 45-46).
142
Testimony of District Commissioner Rudy Strijk, supra note 132 (transcription of public hearing, p. 26).
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