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b)
traditional patterns of use and occupation of territory by the
indigenous communities of the Atlantic Coast of Nicaragua generate
customary law property systems, they are property rights created by
indigenous customary law norms and practices which must be protected, and
they qualify as property rights protected by article 21 of the Convention.
Non-recognition of the equality of property rights based on indigenous
tradition is contrary to the principle of non-discrimination set forth in article
1(1) of the Convention;
c)
the Constitution of Nicaragua and the Autonomy Statute of the
Regions of the Atlantic Coast of Nicaragua recognize property rights whose
origin is found in the customary law system of land tenure which has
traditionally existed in the indigenous communities of the Atlantic Coast.
Furthermore, the rights of the Community are protected by the American
Convention and by provisions set forth in other international conventions to
which Nicaragua is a party;
d)
there is an international customary international law norm which
affirms the rights of indigenous peoples to their traditional lands;
e)
the State has neither demarcated nor titled the indigenous lands of the
Awas Tingni Community nor has it taken other effective measures to ensure
the property rights of the Community to its ancestral lands and natural
resources;
f)
the life of the members of the Community fundamentally depends on
agriculture, hunting and fishing in areas near their villages. The Community’s
relations to its land and resources are protected by other rights set forth in
the American Convention, such as the right to life, honor, and dignity,
freedom of conscience and religion, freedom of association, rights of the
family, and freedom of movement and residence;
g)
the National Commission for the Demarcation of the Lands of the
Indigenous Communities of the Atlantic Coast, created for the purpose of
preparing a “Demarcation Project”, has not contributed to establishing a
mechanism for demarcation of the lands of indigenous peoples with their full
participation;
h)
most inhabitants of Awas Tingni arrived during the 1940s to the place
where they have their main residence, having come from their former
ancestral place: Tuburús. There was a movement from one place to another
within their ancestral territory; the Mayagna ancestors were here since
immemorial times;
i)
there are lands that have traditionally been shared by Awas Tingni and
other communities. The concept of property can consist of co-ownership or in
access and use rights, according to the customs of indigenous communities of
the Atlantic Coast;
j)
the State breached article 21 of the Convention by granting the
SOLCARSA corporation a logging concession on lands traditionally occupied by
the Community, a concession which endangered the enjoyment of the rights
of the indigenous communities, and by considering all lands not registered
under formal title deed to be State lands;