How does Surinamese Law Disenfranchise Indigenous People?

As recently as April 2021, a report by the Mulokot Foundation, the Association of Indigenous Village Leaders (VIDS) and Cultural Survival brought to the United Nations Human Rights Council unveiled that the Surinamese State continues to violate the human rights of Indigenous peoples (Observations on the State of Indigenous Human Rights in Suriname Prepared for United Nations Human Rights Council: Universal Periodic Review, 2021).             While this is no novel development,  this article intends to ask: How does Surinamese Law Disenfranchise Indigenous People? This article intends to explore this question by analyzing (i) The legacy of colonial legal systems, (ii) Land and resource laws, (iii) Lack of Effective participation, (iv) Lack of constitutional rights and guarantees and finds the Surinamese legal system has failed to adequately serve and empower its indigenous population.

Colonial Legal Systems                                                                                                Suriname has an extensive history with European colonial powers – interactions that would come to shape its legal system, and by extension, how Indigenous populations are treated by the State.                                      Suriname’s interaction with European Colonial powers began with its ‘discovery’ in 1499 by the Spanish, whose claims to the territory, after the extensive international legal debate, were eventually disregarded (Kambel & MacKay, 1999, p. 23). Subsequently, an English settlement colony was established, only to later be invaded by the Dutch who, with exception to some instances of interim British rule, remained in control of Suriname until its independence in 1975 (Kambel & MacKay, 1999, p. 24). The battle that was the colonial acquisition of Surinamese land, and the use of international law as a means to do so, had set the precedent that law can often be a tool to justify colonial expansion, and by natural extension, the denial of the rights of Indigenous people.

The colonial legal system was dynamic – encompassing a society of entangled and culturally distinct communities. This diversity was reflected in its pluralistic legal system. As Jan Nepveu[1], governor of Suriname stated, the Indigenous people of Suriname remained ‘recognized as their own masters’ (As cited in Fatah-Black, 2017, p. 244). In practice, this would mean that the customary, often verbal law of Indigenous communities remained entirely separate from Dutch colonial law (Munneke, 1991, p. 94). Seemingly harmless, the inability for colonial powers to aspire to a singular legal system that accommodated Indigenous legal practices would pose several challenges. Notions of exclusivity found in hegemonic models of property and rights to ownership, for example, stood in sharp contrast to the non-exclusive, collective understanding of Indigenous peoples. Such conflicting notions would come to create what Scoones (1994) terms ‘fuzzy access rights’, effectively barring Indigenous communities from access to a direct, unambiguous legal system that can adequately address their grievances (As cited in Gilbert & Begbie-Clench, 2018, p. 7).

Land and Resource Laws                                                                            Historically, the land and resource legislation of Suriname developed in four periods. First, during the period of establishment of a plantation system (1650-1865), the title attached to land rights was allodial ownership. The rights of the allodial owners were circumscribed by conditions, such as the land to be continuously cultivated. During the second period (1863-1930), the government actively engaged with other types of resource exploitation, balata[2], and gold (Kambel & MacKay, 1999, p. 82-83). Subsequently, special leasehold titles were issued, in particular for gold mining and balata. In the following years, significant changes to land and resource legislation were made. For example, the Mineral Ordinance required from those who exploit minerals the government’s permission, and the Agrarian Ordinance prohibited the issuance of allodial ownership but rather granted the domain land as leasehold and absolute ownership (Kambel & MacKay, 1999, p.83). Finally, the Decree L-1 (in force today)[3] which replaced the Agrarian Ordinance in 1982, stipulated that “all land to which others cannot prove ownership rights belongs to the State” (Decree Principles of Land Policy, SB 1982, no. 10 (‘Decree L-1’), art. 1(1)).  Such a rule is also known as the domain principle, as it has been cited by Quintus Bosz to argue why the Indigenous peoples do not enjoy land ‘rights’ under Surinamese law (As cited in Bosz, 1993, p.132)[4]. 

The verbatim of the rule is an implied, but yet clear reference to showcase the discrimination against the Indigenous peoples since, to begin with, they have no titles to land. The substantial limits of the right to land organically lead to scarce availability or even non-availability of resources, which is vital for the survival of such communities. Further, the source of another shortcoming is the so-called ‘savings clause’, the current version of which reads ‘in allocating domain land, the rights of the tribal Indians and Bush Negroes to their villages, settlements and forest plots will be respected, provided that this is not contrary to the general interest’ (Decree L-1, art. 4). Although at first glance, it sounds like a promising guarantee, this rule actually embodies a considerably lower standard for Indigenous rights, by virtue of its explanatory note. That note essentially states that the Indigenous peoples and the Maroons are the only Surinamese citizens whose land rights are to be respected ‘as much as possible and provided that this is not contrary to the general interest (Explanatory note to art. 1(1) Decree L-1). Both of these wordings are unjustifiably discriminatory and problematic. The former reveals that the Indigenous peoples’ rights are not to be respected in an exact manner as other Surinamese citizens, but only ´as much as possible´. The latter, namely the general interest exception, is so broad and vague that the State can easily circumvent it by justifying its action(s) to be in the public interest.

Lack of Effective Participation                                                                              Based on the universal recognition that all human beings are equal and have the same rights and duties, the notion of participation is a crucial one when it comes to the rights of Indigenous and tribal communities. Despite the ratification of the UN Declaration on the Rights of Indigenous Peoples[5] as well as the American Declaration on the Rights of Indigenous People’s[6], Suriname still does not provide effective participation mechanisms for Indigenous peoples and the Maroons in the areas concerning their livelihood. The Council for the Development of the Interior (ROB)[7] along with the Surinamese government provide access to decision-making, however, NGOs and human rights activists have found that these mechanisms are not effective or efficient. While there is access to the said participatory mechanisms, access to information about the environment and concession decisions is not provided to Indigenous communities. According to the submission made by the Forest Peoples Programme[8] regarding Suriname’s compliance with international law, it is observed that concessions regarding mining and logging are issued without the participation and consent of the Indigenous and Maroon peoples. 

Additionally, Indigenous communities are also not included in decisions relating to the decision-making bodies such as the ROB. Therefore, Suriname merely provides a facade of participatory mechanisms but does not truly provide opportunities for the Indigenous peoples and the Maroons to participate in these processes. Therefore, by issuing concessions that oftentimes negatively impact the Indigenous communities and also harms their environment, Suriname is violating domestic law as well as the international human rights norms. 

Lack of Constitutional Recognition and Guarantees                          Constitutional recognition allows for the fundamental rights and interests of minority groups to be protected domestically. Although Indigenous individuals and tribal communities are recognized as legal entities by the current 1987 Constitution of Suriname (with amendments through 1992)[9], the same cannot be said for the Indigenous communities themselves. This non-recognition is in large part the postcolonial consequence of the principle of concordance[10], which constructed the constitutional frameworks in Dutch colonies similar to – if not outrightly identical – to the laws of the metropolitan Netherlands (Munneke, 1991, p.3). In itself, this principle came from a colonial understanding that these lands were homogenous, governable with one type of law, which ultimately disregards the realities of traditional governance practiced before European colonization. (Kambel & MacKay, 1999, p.134)

Aside from constitutional non-recognition, the fundamental rights guaranteed to all Surinamese as enshrined in Chapter V of the Constitution are not enforced for the Indigenous communities. Firstly, the right to equal protection and non-discrimination is provided for in Article 8, which includes in its scope “an equal claim to protection of person and property.”[11] Within the context of Indigenous property, this entails that there should be equal treatment of Indigenous forms of land ownership and their non-Indigenous counterparts. However, this does not translate to reality, as Indigenous peoples remain peripheral to the land ownership system. The aforementioned issue is ancillary to issues raised by Article 41[12] of the Constitution. This article provides that the State has an “inalienable right to take complete possession of its natural resources” to use them to benefit the “economic, social, and cultural development of Suriname.” This proves problematic for Indigenous communities, as its language provides the State a right to appropriate resources that, to a large extent, lie within Indigenous demarcations – so long as it is justifiable under the banner of national development. (Kambel & MacKay, 1999, p.145) This, alongside the Mining Decree[13], was presented as a basis for all resource extraction activities, for bauxite, oil, timber, and especially gold; for example, the Golden Star Resources Mineral Agreement[14] for the gold mining company (Martin, 2001).

While the 1992 Peace Accord[15] following the Suriname Interior Wars offers minimal consolation in protecting Indigenous rights, its interpretation is rather unclear and provisions remain unenforced (Martin, 2001). Thus, legal recognition in the Constitution remains one of the prime objectives in the step forward towards the self-determination of Indigenous communities in Suriname and stands at the forefront of Indigenous activism today.                      In sum, the Surinamese legal system, by design or not, makes difficult the true enfranchisement and empowerment of Indigenous people. Tracing back to the Dutch colonial era and through exclusionary land and resources rights, lack of meaningful participation, and minimal constitutional recognition – Surinamese law effectively ostracizes its Indigenous population.