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The ongoing process of consultation on the draft bill for titling of indigenous
communal property in Nicaragua is a significant step forward, as it has created
opportunities for participation of and consultation with the indigenous peoples.
Indigenous peoples live off the land; in other words, the possibility of maintaining
social unity, of cultural preservation and reproduction, and of surviving physically
and culturally, depends on the collective, communitarian existence and maintenance
of the land, as has been the case since ancient times. The indigenous groups
themselves, in some regions, are interested in the utilization of their resources, but
experience has proven that using natural, renewable or non-renewable resources
without adopting special measures to ensure stability of the indigenous people on the
land -measures which must respect their culture and avoid environmental damagecauses catastrophic damage.
There is no clear uniformity in all countries of Latin America on whether there can be
property rights without a title deed. Certain legislation, as is the case, for example,
of Colombia, accept that indigenous peoples are owners of land and that the title
deed is merely a recognition, a form of evidence. This position can be maintained by
indigenous peoples in all countries which have signed the conventions of the
International Labor Organization. Nicaragua constitutionally accepted the property
rights of indigenous peoples, when it adopted the Autonomy Statute, because it
declared that indigenous peoples have rights to the land, the right of have the lands
which they have traditionally occupied.
The countries that carried out Constitutional reforms have effectively contributed to
providing greater stability to indigenous peoples and to substantially improve
relations between those population groups and the rest of the country’s population,
as well as with the State.
He has not specifically studied the situation of the Awas Tingni Community. The
studies he carried out refer to an analysis and review of the legal system in
Nicaragua as it pertains to the territorial rights of indigenous peoples.
The experience in Latin America regarding the issue of communal property provides
clear illustration. All the policies of Latin American States, for almost 180 years,
were geared toward the elimination of forms of collective property and autonomous
forms of government of the indigenous peoples. This contributed to the elimination
of many of the indigenous peoples, as it led not only to their cultural disappearance
but also to their physical disappearance. Experience in the course of the last 20
years, in those communities which have managed to attain collective property of the
land and have received some sort of support from the State to develop an economy
within those spaces, proves that maintaining the communal system becomes a very
powerful force for transformation and development for the benefit of these
communities and of the respective countries.
In the case of Nicaragua, if a procedure had been defined for demarcation of the
territories and titling of indigenous lands, following the adoption of the Constitution
and the Law on Autonomy, bearing in mind the number of communities that exist on
the Atlantic Coast and progress of those same communities in self-definition of their
own life space, the time taken to grant legal title to those lands could have been
shortened considerably, to one, two, or three years.
l.
Expert opinion of Lottie Marie Cunningham de Aguirre, attorney