By S. James Anaya
On a recent late morning in Nicaragua I landed in a Soviet-made helicopter (a remnant of the revolutionary Sandinistas’ 1980s past) in the remote community of Awas Tingni to witness a historic event, the handing over of the long sought after title to the community’s traditional territory, an area of some 74,000 hectares, or 285 square miles. For the first time ever Nicaragua would formally recognize that these lands belong to Awas Tingni, a Mayangna community of about 1,500 people and one of the many Mayangna, Miskito, and Rama communities that are indigenous to the country’s vast Atlantic Coast region. This day would be the culmination of a struggle that has been at forefront of efforts by indigenous peoples worldwide to reverse historical trends and regain control of ancestral lands and full respect for their human rights. Read more
As the helicopter circled the village hamlet on the banks of the winding Wawa river, searching for a safe place to land amid the dispersed houses; cows, chickens and pigs fled in all directions. With community members congregating below us to greet our landing, I thought back to my many previous treks to this isolated spot surrounded by dense tropical forest. Instead of the 25 minutes by helicopter from Bilwi, the major northern Atlantic Coast town, the trip from there had previously taken me 3 to 6 hours by truck and walking, depending upon road and weather conditions.
On this visit I was arriving with Hernan Estrada, Nicaragua’s Attorney General, and Lumberto Campbell, an envoy of Nicaragua’s President Daniel Ortega. Campbell, who looks a bit like Barack Obama and has a similar charisma, holds the venerated title of Comandante because of his role in the Sandinista revolution; he is the president’s chief advisor on indigenous and Atlantic Coast matters. Several other dignitaries were among the entourage of visitors, including Joel Dixon, the Vice-Minister of Foreign Affairs for Indigenous and Ethnic Issus, and Brooklyn Rivera, the region’s most well-known indigenous leader. In the 1980s, Rivera led an armed group of indigenous fighters in rebellion against the Sandinistas. Today, in a sign of the remarkable political transformation that is occurring in many countries where indigenous people press for a greater say in their lives, he is now a member of Nicaragua’s National Assembly, elected to that position with the backing of indigenous voters in 2006.
The collective presence of these distinguished visitors marked the significance of the event, not just for Awas Tingni but for a new era of government and international policies towards indigenous peoples in Nicaragua and beyond.
Upon landing at Awas Tingni, we were ushered to the center of the village and a freshly made wood-plank stage, decorated with palm leaves and haphazardly exploding balloons tethered unstrategically to them. Banners proclaimed that finally the community’s land title was in hand. The ceremony that ensued combined hospitality for the guests and reflection on the struggle that went before. During the hour-long event, presided by Awas Tingni school teacher Jhili Nelson, the weather vacillated from intense heat by the midday sun, to a welcomed cool breeze under the cover of morphing clouds, to drizzling rain. I was reminded of the vacillation in the political and legal environment that shaped the struggle over the years since 1993, when I first visited Awas Tingni.
An Awas Tingni elder, Charlie Mclean, spoke of that day in 1993 when leaders of the community and I met in the very spot where we were now all assembled – although in a much less auspicious setting. They were about to embark on the effort to secure the community’s land rights in the face of government initiatives to allow large-scale logging of the dense tropical forest within the community’s traditional lands. With the help of the University of Iowa College of Law where I then taught, the Indian Law Resource Center, and the New York law firm Simpson Thacher & Bartlett, a team of lawyers, students and social scientists would be assembled that would help see the community through to this day.
In the 1990s, the Nicaraguan government granted concessions to log on Awas Tingni traditional lands to multinational companies, without the community’s consent. It was following a pattern of neglect that has plagued indigenous peoples worldwide since colonizing outsiders first made contact with them. The taking of indigenous lands and resources is linked to a range of discriminatory acts, undergirded by a philosophical posture that regards indigenous cultures and ways of life as inferior to that of the encroaching societies. As a result of such histories of discrimination and oppression, indigenous peoples worldwide, practically as a matter of definition, are now the poorest among the poor, exist at the margins of power, and are vulnerable to a range of social ills and human rights violations.
Indigenous peoples, whose traditional lands are the depositories of much of the world’s remaining valuable natural resources, are today facing renewed threats to their survival. Resource-hungry economic forces, fueled by transnational trade liberalization, target indigenous territories, often with impunity and the aid of all-too-compliant governments. For indigenous peoples, the problem is not so much that major investors and industry are targeting their lands and resources, but that these economic forces are doing so without adequate regard for the indigenous presence.
When confronted by government-authorized logging on its traditional lands, without having agreed to the terms of the logging or secured benefits from it, Awas Tingni leaders decided to take a stand. After their appeals to government officials and the Nicaraguan judicial system went unheard, they took their case to the human rights protection institutions that are linked to the Organization of American States, the hemispheric inter-governmental body. The case eventually made its way to the Inter-American Court of Human Rights.
On Aug. 31, 2001, the Inter-American Court of Human Rights issued its historic decision in the case of Awas Tingni v. Nicaragua, finding that Nicaragua had violated the rights of the community for both its granting of concessions to log on Awas Tingni traditional lands and its failure to recognize Awas Tingni property rights in those lands. In its decision, the Inter-American Court found that the right to property, as affirmed in the Inter-American Convention on Human Rights, protects the traditional land tenure of indigenous peoples.
This was the first case in which an international tribunal with legally binding authority found a government in violation of the collective land rights of an indigenous group. The judgment set an important precedent for the rights of indigenous peoples in international law, signaling to governments that a new era of respect for indigenous rights was in the making.
The United Nations followed the trend signaled by the Awas Tingni decision and on Sept. 13, 2007 adopted a Declaration on the Rights of Indigenous Peoples, upholding the “right to self-determination” of indigenous peoples within the framework of the states in which they live. The Declaration calls for measures to secure indigenous peoples cultural identities and rights to traditional lands, and for concerted action domestically and internationally to improve their social and economic conditions.
While an overwhelming majority of the 192 UN member states voted in favor of the Declaration, four voted against it – unfortunately the United States among them – for reasons that only a lawyer accepting of an extreme version of legal formalism could buy. But changing political climates in each of the opposing states provides hope that those four will eventually reverse positions and join in the march toward greater enlightenment in human rights, with expressions of support for the Declaration.
But it is one thing for governments to profess support for lofty principles of human rights or adherence to the decisions of tribunals. It is quite another thing for the rhetoric to translate into the reality of people’s lives.
Shortly after the decision of the Inter-American Court in the Awas Tingni case was announced, the government of Nicaragua publicly stated that it would adhere to the court’s order to demarcate and title Awas Tingni’s land and to develop a procedure to title all indigenous lands of the country. But for a number of years that commitment was slow to be fulfilled, as competing economic and political forces continued to pull against effective recognition of indigenous land rights. With the Sandinistas back in power as a result of national elections in 2006 and a coalition pact they had made with the YATAMA indigenous party headed by Brooklyn Rivera, the land titling process under a new law and administrative procedure started to move forward more deliberately.
A complicating factor in the land titling process were the claims of neighboring Miskito communities for lands that extend into those claimed by Awas Tingni. After closely examining the competing land claims, the Nicaraguan titling agencies resolved them in a way that apparently has left some individuals among the Miskito communities dissatisfied. These individuals have protested with a road blockade and public statements of discontent, in a sign of the continuing complexities faced by the Nicaraguan government in securing communal indigenous land tenure throughout the Atlantic Coast region and of the need for it to remain vigilant to eliminate such tensions.
Whatever one might think in other respects of the current Nicaraguan government under the Sandinistas, its policies and now actions on indigenous rights are to be encouraged. It should be congratulated for making good on the commitment to recognize and title Awas Tingni traditional lands in accordance with international standards, and to move decidedly with that act toward securing the rights of indigenous peoples more broadly. Governments around the world should take note of what happened recently at Awas Tingni, to see that the way those in power treat indigenous peoples can take a new and better course.
Evelyn Taylor, an official of the Nicaraguan government titling agency, clearly understood the significance of the title document she held in her hands as she stood before those recently gathered at Awas Tingni. She read the entire document, making her way through its legalistic and sometimes impenetrable wording as community members looked intently on. The Attorney General then took the title document and ceremoniously handed it over to Jonathon Levi, Awas Tingni’s current Sindico, or principal leader, who in turn made an impassioned speech about the meaning of the title to the community.
The Attorney General and Jonathon physically embraced and jointly gripped the title document. Brooklyn Rivera, Lumberto Campbell, others, and I joined in the embrace, to the applause of all, for all of us recognized something important, with implications far beyond the tiny village of Awas Tingni on the Atlantic Coast of Nicaragua, had transpired on this historic day.
S. James Anaya is the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, and is the James J. Lenoir Professor of Human Rights Law and Policy at the University of Arizona. He was the lead attorney for the Awas Tingni community and is the author of “Indigenous Peoples in International Law” (Oxford, 2d. ed. 2004).
Source
Indian Coutry Today
Story Published: Jan 5, 2009