59
years, with its duty according to the American Convention, nor to consider
that the untitled indigenous lands are State lands, nor to grant concessions to
foreign firms on those lands.
Even after the State undertook the
commitment, in its “1986 Constitution”, to guarantee communal property of
the indigenous communities, a long period has gone by without this being
actually carried out in connection with Awas Tingni and many other
indigenous communities;
j)
the representatives of Awas Tingni have taken several steps in
connection with titling of their lands, addressing the State authorities which
have had any relevant competence, including INRA, the institution which was
indicated by Nicaragua as the authority which had the power to grant title
deed to the indigenous communal lands. On the other hand, according to the
tripartite contract signed by the Community, MARENA and MADENSA,
MARENA undertook a commitment to provisionally recognize property rights
of the Community over the forestry management area and to facilitate a
titling process in favor of the Community. However, MARENA did not fulfill
this commitment. Furthermore, in March, 1996 the Community submitted a
titling request to the Regional Council of the RAAN, but never received a
reply, and instead the following year the Council authorized the concession to
the SOLCARSA corporation without having consulted with the Community.
Finally, the Community met with the President of Nicaragua in February,
1997, to object to the concession and request his aid for those same goals;
however, that meeting did not generate any concrete act for the benefit of the
Community.
k)
in promoting the concession to SOLCARSA, the State did not take into
account the Community and its traditional land tenure; Nicaragua considered
the area of the concession to be State lands;
l)
the Community has no formal title nor any other instrument
recognizing its right to the land where they live and where their cultural and
subsistence activities take place, even though it has been requesting it from
the State for years. Since 1987, Nicaragua has granted no title deeds at all to
indigenous communities. The situation of the Community has continued
despite efforts made since 1991 to attain demarcation and titling of their
traditional land. The State has been negligent and arbitrary in the face of the
titling requests by the Community;
m)
the principle of estoppel does not allow the State to argue that the
Community has no legitimate claim based on traditional or historic land
tenure, since that allegation is contrary to positions maintained by the State
before the Commission and before the Community on several occasions;
n)
for indigenous peoples, access to a simple, rapid, and effective legal
remedy is especially important in connection with the enjoyment of their
human rights, given the conditions of vulnerability under which they normally
find themselves for historical reasons and due to their current social
circumstances. In this case, article 25 of the Convention was breached in
three ways: unjustified delay in court proceedings; rejection of the remedies
filed by the Community, and non-enforcement of the judgment that declared
the concession to be unconstitutional; and