60
ñ)
the granting of the concession to SOLCARSA and omission by the State
in not adopting measures to ensure the rights of the Awas Tingni Community
to its land and natural resources, according to their traditional patterns of use
and occupation, were breaches of articles 1 and 2 of the Convention.
Arguments of the State
105.
Regarding article 25 of the Convention, the State, in turn, alleged that:
a)
it cannot be established that there has been legislative procrastination
in Nicaraguan law that has hindered claiming a right recognized by the
Constitution. There is a legal framework to carry out the process of land
titling for indigenous communities in the country, through the Nicaraguan
Agrarian Reform Institute (INRA), which was ignored by the Community. This
juridical framework was established by Law No. 14, “Amendment to the
Agrarian Reform Law”, on January 11, 1986. The State has granted title deed
to 28 indigenous communities under this law. There is no request for title
deed submitted by the community in the files of INRA;
b)
there has been no denial of recognition of a right in connection with
which there have simply been no requests made to the national authorities.
The Awas Tingni Indigenous Community never filed a formal request for land
titling before the courts. The Supreme Court of Justice cannot be blamed for
not having provided a legal remedy which was never requested. The claims of
the Community were all related to their objection to the logging concession
granted to SOLCARSA;
c)
the Community submitted an ambiguous and obscure request to the
Regional Council of the RAAN for it to help fill a normative gap which allegedly
existed in this matter. With that, the Community sought to disregard the
indigenous land titling procedures, in addition to creating confusion or conflict
of jurisdictions between the authorities of the Central Government and of the
Regional Governments in the Atlantic Coast;
d)
on November 7, 1997 the Community filed an amparo remedy before
the Supreme Court of Justice arguing the responsibility of the State for
administrative procrastination caused by lack of a decision by the Regional
Council of the RAAN, diverting attention from the fundamental issue, arguing
that the Community had not submitted any request for titling of its alleged
ancestral lands before the competent authorities, which is equivalent to lack
of procedural claim;
e)
the Community has disregarded domestic procedures under
Nicaraguan law, it claims lands which are not ancestral, and through the
mechanism of international judicial pressure it seeks to set aside the interests
of third parties in the area;
f)
the Awas Tingni Community exercised its right to request land titling in
a deficient manner, considering that it was doing so when it objected to the
logging concession granted on lands that they claim:
1. When the administrative procedure to grant the logging concession
had not yet been completed and the authorities of MARENA advised
the public on May 17, 18, and 19, 1995 of that circumstance, for third