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However, the Community has not made any request to the competent
governmental authorities for demarcation and titling;
c)
the Community has recognized on different occasions that it received
title to the land and it stated this explicitly in the contract it entered into with
the MADENSA corporation;
d)
The Commission was unable to prove that Awas Tingni was present
before 1945 on the lands they claim; the Community itself has recognized
that possession of the lands it claims goes back to that year. The State
believes that it is a group that separated itself from a “mother” indigenous
community, but that it claims separate and independent titling of lands the
possession of which is not ancestral;
e)
adverse possession does not apply in this case, as the Mayagna
Community’s possession was “precarious”;
f)
the process of indigenous titling of the communities of the Atlantic
Coast is characterized by being complex, due to the following circumstances:
a) the phenomenon of proliferation of indigenous communities, as a
consequence of the dismemberment of groups of these; b) the phenomenon
of grouping and regrouping of indigenous communities with and without title;
c) the phenomenon of migration of indigenous communities to occupy lands
that are not ancestral; d) the phenomenon of indigenous communities with
title that claim ancestral lands as if they had never received title deeds, and
e) human groups that claim indigenous titles without having formally
accredited their status as indigenous communities according to the law;
g)
the area of land claimed by the Community is disproportionate to the
number of members of the Community, for which reason it does not have the
right under the terms stated in its claim. The Mayagna Community states that
it has about 600 members, and it irrationally claims an area of roughly
150,000 hectares, a claim that exceeds the subsistence needs of its members.
The area’s biodiversity does not justify the long distances covered for hunting
and fishing, which seems to be an argument used by the Community to
increase the area they are claiming. Furthermore, a 1995 census indicates
that the number of members of the Community is 576 persons, of whom only
43% are Mayagna;
h)
in the course of submitting petitions to non-competent authorities, the
Awas Tingni Community increased the area claimed, which demonstrates bad
faith in its actions and became an obstacle to attaining “an expeditious
solution”;
i)
the logging concession granted to the SOLCARSA corporation was
restricted to areas which were considered to be national lands. Since the
process of land titling began on the Atlantic Coast, the State has left
“corridors” or “areas of national lands” between the indigenous communities
that have received title to their lands. The national authorities of MARENA
granted a logging concession to a fraction of an area considered to be a
“national lands corridor” and none of the communities disputed it “because
they were aware that it was on a fraction of the corridor of national lands that
existed between them”. However, the Mayagna Community claims all that
area;