APA..Newsletter # 3
International News..International Human Rights Court to Rule on Indian Land Rights Case Against the Government of Nicaragua (Indian Law Resource Center - February 4, 2000)

In a unanimous decision, the Inter-American Court of Human Rights has ruled that it will review a case against Nicaragua in which Indian land rights are the central issue. This is an unprecedented ruling by an international court. It is a successful first step in a legal case brought by Indians that will likely have a profound impact on the rights of millions of indigenous people of the Americas, almost all of whom are struggling to protect their lands and resources from exploitation.

The Awas Tingni human rights complaint was originally submitted to the Inter-American Commission on Human Rights by the Indian Law Resource Center. The complaint charged that Nicaragua approved destructive logging concessions on indigenous communal lands without consultation with or agreement of the affected communities and that Nicaragua failed to carry out its legal obligation to demarcate and legally secure indigenous lands. The complaint requested a ruling from the Court requiring that Nicaragua compensate Awas Tingni for the encroachment on its land. If the case is won on the merits, Nicaragua will be required to establish a formal legal process for demarcating indigenous lands and for protecting indigenous rights to those lands.

The Miskito, Rama, and Mayagna (Sumo) are the original indigenous peoples who have historically populated the Nicaraguan Atlantic Coast, preserving their languages, customs, culture, and use of their communal lands. These indigenous peoples are organized into distinct, autonomous communities, each one with its own traditional social
and political institutions. The Atlantic Coast indigenous communities have a system of communal property in which the land belongs collectively to all members of the community. They use the land, forests and rivers for subsistence agriculture, hunting, and fishing. The culture and identity of the Atlantic Coast indigenous peoples are profoundly connected to the land.

In the past several years, the Awas Tingni Mayagna community has attempted to prevent the wholesale destruction of their lands by companies seeking to log the forests in their traditional territory. These companies have not been well regulated and are rarely interested in preserving forest health in the areas where they operate. Timber harvesting without regular replanting, destruction of traditional farming areas by road-building and other logging activities, and pollution of water resources are commonplace in Nicaragua and throughout Central America where logging companies are given free rein.

In 1995, with assistance from the Indian Law Resource Center's attorneys, the Awas Tingni community filed a petition for emergency relief in the Nicaraguan courts to prevent the Nicaraguan government from granting a large forestry concession to a Korean-based logging company operating under the name "Sol de Caribe, S.A." (SOLCARSA). This 30-year concession would have allowed SOLCARSA to exploit more than 62,000 hectares of tropical forest in Mayagna traditional territory. In 1996, the Nicaraguan government granted the SOLCARSA concession despite the pending court action and in clear violation of the Awas Tingni community's property rights.

The Awas Tingni protest against the SOLCARSA concession was soon joined by other indigenous communities as well as the Organization of Indigenous Community Leaders of the Nicaraguan Caribbean Coast, which is known by its Spanish acronym, OSICAN. Although the community's petition to the courts complained a clear threat to their property rights and imminent danger to the resources they depend on, after a year's delay, the courts dismissed their case without considering the merits of their claims. In a separate lawsuit brought by representatives of the autonomous regional government, also with the assistance of the Center, the Nicaraguan Supreme Court did find the SOLCARSA concession to be unconstitutional because of the government's failure to obtain approval of the regional government. Afterwards, however, ignoring the community's rights and the Supreme Court decision, both the regional and national governments ultimately allowed the concession to proceed.

Already, the proceedings within the OAS have had an impact. The SOLCARSA logging concession was canceled because of political pressure as the public became aware of the Indians' legal fight. And preliminary steps are now underway to demarcate indigenous lands in Nicaragua. Made aware of the OAS proceedings by Indian Law Resource Center
attorneys, the World Bank conditioned a financial aid package to Nicaragua on its development of legislation to demarcate indigenous Lands. With much fanfare late last year, the Nicaraguan President proposed legislation that would provide a framework for indigenous land demarcation. Unfortunately, however, the President failed to include indigenous communities in the development of this legislation and failed to provide
adequate protections for their lands. The legislation will require immense revision and negotiations before it is acceptable to the indigenous leaders. This type of response on the government's part, nonetheless, indicates the importance of the Awas Tingni case in the Inter-American Court.