political rights, to the detriment of the Kaliña and Lokono peoples.” The failure to provide
the grounds for the supposed equivalence to political rights continues.
d)
In paragraph 198 (the sole paragraph in the section entitled “Conclusion on
the restrictions in the nature reserves”), political rights are once again included without any
grounds: “In sum, the Court finds that the State has violated the victims’ rights to collective
property, cultural identity and participation in public matters, mainly by preventing their
effective participation, and the access to part of their traditional territory and natural
resources, in the Galibi and Wane Kreek nature reserves, as well as by failing to guarantee,
effectively, the traditional territory of the communities that has been affected by the
environmental degradation within the Wane Kreek Nature Reserve, which constitutes a
violation of Articles 21, 2 and 23 of the American Convention, in relation to Article 1(1)
thereof, to the detriment of the Kaliña and Lokono peoples and their members.”
e)
Paragraph 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.” In this case, there is
evident confusion between “to take part in the conduct of public affairs” and Articles 18 and
32 of the Declaration on the Rights of Indigenous Peoples relating to participation in
matters which would affect their rights and the obligation of States to “consult […] prior to
the approval of any project affecting their lands.”
f)
Paragraph 203: The following paragraph enunciates, but without providing
any grounds, the presumed equivalence between the right to participation and consultation
derived from the right to property, and the right to participate in the conduct of public
affairs. Thus, it indicates: “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).” No explanation is given as to why
“the conduct of public affairs” would be equivalent to participation in decisions relating to
private property of a collective nature. Nor is it explained why matters relating to private
property or to any of its implications would be a “matter of public interest.”
g)
The paragraph containing the final conclusion in this regard (para. 230)
mentions the presumed violation of Article 23, but the only grounds included refer to Article
21 concerning private property, and not to the right to take part in the conduct of public
affairs recognized in Article 23, which has a very different meaning and content.
21.
The remaining mentions of Article 23 are contained in the chapter on reparations
(VII) and evidently refer to the considerations in the chapter on merits (VI) without adding
any reasoning in this regard (paras. 278, 295 and 304). To the contrary, when the grounds
8
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