40
affect “communities in the direct vicinities”.132 Nonetheless, the Court considers that the
actual scope of the guarantees concerning consultation and sharing of the benefits of
development or investment projects requires further clarification.
E.2.a) Right to consultation, and where applicable, a duty to obtain consent
133. First, the Court has stated that in ensuring the effective participation of members of
the Saramaka people in development or investment plans within their territory, the State
has a duty to actively consult with said community according to their customs and traditions
(supra para. 129). This duty requires the State to both accept and disseminate information,
and entails constant communication between the parties. These consultations must be in
good faith, through culturally appropriate procedures and with the objective of reaching an
agreement. Furthermore, the Saramakas must be consulted, in accordance with their own
traditions, at the early stages of a development or investment plan, not only when the need
arises to obtain approval from the community, if such is the case. Early notice provides time
for internal discussion within communities and for proper feedback to the State. The State
must also ensure that members of the Saramaka people are aware of possible risks,
including environmental and health risks, in order that the proposed development or
investment plan is accepted knowingly and voluntarily. Finally, consultation should take
account of the Saramaka people’s traditional methods of decision-making.133
134. Additionally, the Court considers that, regarding large-scale development or
investment projects that would have a major impact within Saramaka territory, the State
has a duty, not only to consult with the Saramakas, but also to obtain their free, prior, and
informed consent, according to their customs and traditions. The Court considers that the
difference between “consultation” and “consent” in this context requires further analysis.
135. In this sense, the U.N. Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people has similarly observed that:
[w]herever [large-scale projects] occur in areas occupied by indigenous peoples it is
likely that their communities will undergo profound social and economic changes that
are frequently not well understood, much less foreseen, by the authorities in charge of
promoting them. […] The principal human rights effects of these projects for
indigenous peoples relate to loss of traditional territories and land, eviction, migration
and eventual resettlement, depletion of resources necessary for physical and cultural
survival, destruction and pollution of the traditional environment, social and
community disorganization, long-term negative health and nutritional impacts as well
as, in some cases, harassment and violence.134
132
Testimony of District Commissioner Rudy Strijk during the public hearing at the Court held on May 9 and
10, 2007.
133
Similarly, in Maya Indigenous Communities of the Toledo District v. Belize, the Inter-American
Commission observed that States must undertake effective and fully informed consultations with indigenous
communities with regard to acts or decisions that may affect their traditional territories. In said case, the
Commission determined that a process of “fully informed consent” requires “at a minimum, that all of the members
of the community are fully and accurately informed of the nature and consequences of the process and provided
with an effective opportunity to participate individually or as collectives”. Cf. Inter-American Commission on Human
Rights, Report 40/04, Merits. Case 12.052. Maya Indigenous Communities of the Toledo District, supra note 84,
para. 142. Cf. also, Equator Principles, Principle 5.
134
U.N., Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, supra note 97, p. 2.
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