Awas Tingni v. Nicaragua reconsidered: grounding indigenous peoples' land rights in religious freedom.

• Author: Neihart, Bryan

1. INTRODUCTION

   The Inter-American Court on Human Rights ("IACHR") decided the Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua ('Awas Tingni") over twelve years ago. (1) Since then, the decision has been the subject of many notes and articles focusing primarily on the decision's impact on the collective land and property rights of indigenous peoples. (2) Indeed, the Awas Tingni decision has been celebrated as a "landmark decision." (3) It prompted the IACHR to form a distinct body of jurisprudence for indigenous peoples, elaborated a canon of legal interpretation uniquely for indigenous peoples, and was the first legally binding decision by a regional court to recognize collective land rights. (4)

   However, despite the A was Tingni decision and the more recent adoption of the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP"), a celebrated declaration recognizing the collective rights of indigenous peoples, (5) indigenous peoples continue to lose access to and possession of their land, territory, and resources due to state expansion. For instance, within the last year, Mayan leaders governing thirty-eight villages in Belize were excluded from discussions between government officials and a U.S.-based oil company for oil concessions on traditional Mayan lands; (6) San communities in Namibia have had difficulty gathering food for themselves because commercial cattle farmers erected illegal fences on their lands while the government ignores the problem; (7) and the Nez Perce Tribe of northern Idaho protested the transportation of oil equipment on the grounds that it damages historic and cultural resources and violates treaties. (8)

   These recent examples illustrate that while the Awas Tingni decision and international instruments like UNDRIP articulate the right of collective land ownership for indigenous peoples, actual protection remains aspirational.

   This note offers a new understanding of the A was Tingni decision. Other notes have focused exclusively on the majority opinion in the Awas Tingni decision and its influence on conceptualizing collective ownership as a property right. (9) By contrast, this note centers on the concurring opinion by Judges Trindade, Gomez, and Burelli and offers a freedom-of-religion-based defense of collective land ownership. The concurring judges agreed with the court's decision on the merits but jointly filed a separate opinion highlighting how the Awas Tingni Community's land, territory, and resources must be understood as a part of their spiritual existence because the Community believed that certain landscape features were divine and performed their religious rituals on their land.

   Based on the concurring opinion, this note argues that collective ownership rights for many indigenous peoples should also be grounded in the right to religious freedom. This approach strengthens collective ownership claims because religious freedom has been recognized as a basic human right since the Reformation while the right to collective land ownership has only been recognized recently. (10) Because of its history, religious freedom is codified throughout the world in many international instruments, regional documents, and domestic laws. Defending collective property rights in terms of religious freedom is also effective because even countries without collective rights most likely do have strong jurisprudence protecting religious liberty. (11)

   Part II describes the Awas Tingni Community's spiritual relationship with their land, briefly discusses the background of the Awas Tingni decision, and reviews the court majority's decision while emphasizing the concurring opinion. Part III addresses some of the most prominent critiques of collective rights generally and responds to these criticisms through cases involving religious minorities to illustrate the broader point that concepts of religious freedom are a helpful lens through which to view indigenous peoples' claims to collective land ownership. Part IV proposes that international law, and many regional and domestic courts and governments, already acknowledges a special connection between indigenous peoples' land and their spirituality making a freedom-of-religion-based defense of collective property rights particularly useful. (12)

   Bryan Neihart, J.D./M.A. Candidate, 2014, University of Denver, Sturm College of Law/Josef Korbel School of International Studies; B.A., French and International Relations, 2011, Wheaton College (IL). Thank you to Professor Tom Farer and Professor Andrew Reid for lending their expertise and insightful comments throughout the drafting process; to the DJ1LP staff for your hard work and friendship; and, of course, to my lovely wife (Psalm 34:1).

2. BACKGROUND

   1. Factual Background

      The Awas Tingni Community is an indigenous community of approximately 600 people who live in the Northern Atlantic Autonomous Region of the Atlantic Coast of Nicaragua. (13) The Community claimed ownership based on the fact that it had lived in the territory for over 300 years. (14) Community members make their living by farming, hunting, and fishing and seek to preserve their natural resources by carefully selecting the things they consume. (15) The territory is owned collectively and only Awas Tingni members could use the land's resources. (16) As one member explained:

      The lands are occupied and utilized by the entire Community.... If a person does not belong to the Community, that person cannot utilize the land. There is no right to expel anyone from the Community. To deny the use of the land to any member of the Community, the matter has to be discussed and decided by the Community Council. When a person dies, his or her next of kin become the owners of those things that the deceased person owned. But since lands are collective property of the community, there is no way that one member can freely transmit to another his or her rights in connection with the use of the land. (17) In addition to owning the land collectively, the Awas Tingni Community believes that its members share a spiritual relationship with their territory. (18)

      Theodore Macdonald Jr., an anthropologist, explained how the hills located in the territory were part of the Community's religious worldview:

      The "spirits of the mountain" ... which in Mayagna are called "Asangpas Muigeni", live in them, and it is they who control the animals throughout that region. To make use of those animals, one must have a special relationship with the spirits. Oftentimes ... [the spiritual leaders] can maintain such a relationship with the spirits. Therefore, the animals' presence and the possibility of hunting them is based on their cosmovision and has much to do with the boundaries, because according to them these masters of the mountain own the animals.... (19) To the Awas Tingni Community, hunting is "a spiritual act, and it has much to do with the territory with [sic] they utilize." (20) Another anthropologist, Rodolfo Stavenhagen Gruenbaum, acknowledged that the Community's land is a "symbolic and religious space, with which the history and current dynamics of those people are linked" and according to the Community "the land is seen as a spiritual place ... as it is linked to human beings, since it has sacred places ...." (21) Based on these beliefs, any amount of relocation, exploitation, or development necessarily inhibits the Awas Tingni Community's ability to worship and perform rituals.

      Transnational companies began exploring the Community's claimed lands with the permission of the Nicaraguan government and in December 1993, the Ministry of Environmental and Natural Resources ("MARENA") granted a logging concession to a Dominican owned company Maderas Y Derivados de Nicaragua, S.A. ("MADENSA") for logging on 43,000 acres of the Community's lands. (22) With the help of environmental and human rights activists, by May 1994 the Community negotiated a deal with MARENA and MADENSA whereby the community would benefit economically from the logging and the government would demarcate their traditional lands. (23) As the Community awaited official demarcation of their property, on January 5, 1995, the National Forestry Service approved a plan submitted by Sol Del Caribe, S.A. ("SOLCARSA") to harvest and manage timber in areas traditionally used by Awas Tingni without consulting them. (24) On July 11, 1995, the Awas Tingni submitted a letter to MARENA, requesting that no further steps be taken by SOLCARSA without the Community's approval. (25) Despite this request, on March 13, 1996, MARENA granted SOLCARSA a 30-year logging concession to 62,000 hectares in the North Atlantic Autonomous Region inhabited by the A was Tingni Community, apparently under the assumption that the disputed land was entirely government owned. (26)

      On October 2, 1995, the Awas Tingni filed a petition with the Inter-American Commission on Human Rights ("Commission") to intervene to relieve the threats to its land and resource tenure alleging violations of the right to property, the right to cultural integrity, and other rights guaranteed by the American Convention on Human Rights ("Convention"). (27) On September 11, 1995, and again on November 7, 1997, the Community filed an action for amparo (emergency relief) with the Nicaraguan judicial system, but these requests were denied. (28) The Commission decided to take the case in May 1998. (29) On June 4, 1998, the Commission filed a complaint with the IACHR claiming that Nicaragua violated Article 25 (right to judicial protection), Article 21 (right to property), and Article 1 (obligation to respect rights, including freedom of conscience and religion) of the Convention. (30)

   2. Majority Opinion

      The IACHR began by assessing the Commission's claim that Nicaragua violated Article 25 of the Convention which guarantees the right "to a competent court or tribunal for protection against acts that violate his fundamental rights...