JOINT CONCURRING OPINION OF JUDGES
HUMBERTO ANTONIO SIERRA PORTO AND
EDUARDO FERRER MAC-GREGOR POISOT
CASE OF THE KALIÑA AND LOKONO PEOPLES V. SURINAME
JUDGMENT OF NOVEMBER 25, 2015
(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
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