36
use of the natural resources in their territory “that are related to their culture and are found
therein”, and that Article 21 protects their right to such natural resources (supra paras. 85Nevertheless, the scope of this right needs further elaboration, particularly
96).122
regarding the inextricable relationship between both land and the natural resources that lie
therein, as well as between the territory (understood as encompassing both land and
natural resources) and the economic, social, and cultural survival of indigenous and tribal
peoples, and thus, of their members.
121. In accordance with this Court’s jurisprudence as stated in the Yakye Axa and
Sawhoyamaxa cases, members of tribal and indigenous communities have the right to own
the natural resources they have traditionally used within their territory for the same reasons
that they have a right to own the land they have traditionally used and occupied for
centuries. Without them, the very physical and cultural survival of such peoples is at
stake.123 Hence the need to protect the lands and resources they have traditionally used to
prevent their extinction as a people. That is, the aim and purpose of the special measures
required on behalf of the members of indigenous and tribal communities is to guarantee
that they may continue living their traditional way of life, and that their distinct cultural
identity, social structure, economic system, customs, beliefs and traditions are respected,
guaranteed and protected by States.
122. As mentioned above (supra paras. 85-96), due to the inextricable connection
members of indigenous and tribal peoples have with their territory, the protection of their
right to property over such territory, in accordance with Article 21 of the Convention, is
necessary to guarantee their very survival. Accordingly, the right to use and enjoy their
territory would be meaningless in the context of indigenous and tribal communities if said
right were not connected to the natural resources that lie on and within the land. That is,
the demand for collective land ownership by members of indigenous and tribal peoples
derives from the need to ensure the security and permanence of their control and use of the
natural resources, which in turn maintains their very way of life. This connectedness
between the territory and the natural resources necessary for their physical and cultural
survival is precisely what needs to be protected under Article 21 of the Convention in order
to guarantee the members of indigenous and tribal communities’ right to the use and
enjoyment of their property. From this analysis, it follows that the natural resources found
on and within indigenous and tribal people’s territories that are protected under Article 21
are those natural resources traditionally used and necessary for the very survival,
development and continuation of such people’s way of life.124
123. Thus, in the present case, the Court must determine which natural resources found
on and within the Saramaka people’s territory are essential for the survival of their way of
life, and are thus protected under Article 21 of the Convention. Consequently, the Court
122
The Court also takes notice that the African Commission, as well as the Canadian Supreme Court and the
South African Constitutional Court, have ruled that indigenous communities’ land rights are to be understood as
including the natural resources therein. Nevertheless, according to the African Commission and the Canadian
Supreme Court, these rights are not absolute, and may be restricted under certain conditions. Cf. African
Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Center and the Center for
Economic and Social Rights v. Nigeria, Communication 155/96 (2001), paras. 42, 54 and 55, and Delgamuukw v.
British Columbia, [1997] 3 S.C.R. 1010 (December 11, 1997), paras. 194, 199 and 201. The South African
Constitutional Court, citing a domestic law that required the return of land to owners who had been dispossessed
by racially discriminatory policies, affirmed the right of an indigenous peoples to the mineral resources in its lands.
Cf. Alexkor Ltd. and the Government of South Africa v. Richtersveld Community and Others, CCT/1903 (October
14, 2003), para. 102.
123
Cf. Case of the Indigenous Community Yakye Axa, supra note 75, para. 137, and Case of the Indigenous
Community Sawhoyamaxa, supra note 75, para. 118.
124
Cf. Case of the Indigenous Community Yakye Axa, supra note 75, paras. 124 and 137, and Case of the
Indigenous Community Sawhoyamaxa, supra note 75, paras. 118 and 121.
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