Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Nicaragua (Ratification: 2010)

The Committee notes the Act for the Partial Reform of the Political Constitution of Nicaragua, adopted in January 2014, which replaces the term “communities of the Atlantic Coast” with “communities of the Caribbean Coast” contained in article 180 of the Constitution, and which recognizes that such communities have the “inalienable right to live and develop under the political, administrative, social and cultural organizational structure that is in keeping with their historical and cultural traditions”. Consequently, in March 2016, Act No. 28 containing the Statute of Autonomy of the Atlantic Coast Regions of Nicaragua was amended, by replacing the terms “North Atlantic Autonomous Region” and “South Atlantic Autonomous Region” with “North Caribbean Coast Autonomous Region” and “South Caribbean Coast Autonomous Region” respectively. The Committee recalls that the Government has recognized the existence of indigenous peoples and peoples of African descent in these autonomous regions, and in the Pacific, Central and North regions of Nicaragua.

Article 3 of the Convention. Human rights. Violence against indigenous communities on the North Caribbean Coast. The Committee notes that the Inter-American Court of Human Rights (IACHR), through its ruling of 1 September 2016, issued provisional measures in favour of members of the Miskito people from the North Caribbean Coast region living in the communities of Klisnak, Wisconsin, Wiwinak, San Jéronimo and Francia Sirpi in order to bring an end to the climate of violence affecting this region, which stems from conflicts over land possession. These measures include the establishment of an authority or body to identify the sources of conflict and propose ways of building peace with the participation of the communities affected, and of guarantees to protect persons who have left their communities due to violence and who wish to return. In the rulings adopted on 23 November 2016 and 30 June 2017, the Court extended these provisional measures to cover members of the Miskito people living in the Esperanza Río Coco and Esperanza Río Wawa regions, respectively. The Court based its rulings on the conclusions of the Inter-American Commission of Human Rights, which referred to the “existence of conflicts between members of such communities and third parties occupying the land, which has resulted in multiple acts of violence, including murders, kidnappings, injury, sexual violence, destruction of property and displacement of the members of some communities” during the legal process of verification (saneamiento) and remediation, and reclaiming ancestral land (court ruling of 1 September 2016, paragraph 7). The Committee notes that the Government informed the Court that it had implemented an action plan used by the North Military Unit of the Nicaraguan Army to address the situation faced by community members and occupiers in communities affected by violence, and that it has established a Dialogue and Understanding Commission to take action to promote dialogue and understanding between territorial and community leaders and other stakeholders for the purpose of preventing confrontation (court ruling of 23 November 2016, paragraphs 23 and 31). The Committee expresses its concern regarding the conflicts and acts of violence that have occurred in the North Caribbean Coast Autonomous Region as a result of land claims and verification and remediation (saneamiento) processes. The Committee requests the Government to provide information on: the measures adopted to prevent all acts of violence and ensuring the cultural life and integrity of the communities of the Miskito people in this region, and the exercise of their collective rights; and the measures adopted to investigate acts of violence, determine the responsibilities of and penalize the perpetrators. Lastly, the Committee also requests the Government to indicate the manner in which members of the Miskito communities affected by the climate of violence participate in the development, implementation and evaluation of the measures adopted, including security plans.

Article 14. Demarcation and land title processes. In its previous comments, the Committee requested the Government to provide information on progress made in the demarcation and title processes with respect to the lands of indigenous peoples. The Committee noted the constitutional and legal guarantees regarding the communal ownership of the lands of indigenous peoples. The Committee recalls that the demarcation and title processes of the indigenous peoples of the autonomous regions of the Caribbean Coast are regulated by the Act governing communal ownership for the indigenous peoples and ethnic communities of the autonomous regions of the Atlantic Coast of Nicaragua and of the Bocay, Coco, Indio and Maíz rivers (Act No. 445 of 2002), which established the National Demarcation and Title Commission (CONADETI) to, inter alia, determine and resolve applications for demarcation and title. While observing that there is no specific legislation that regulates the communal property of the indigenous peoples of the Pacific, Central and North regions of the country, the Committee requested the Government to describe the steps taken to identify the lands traditionally occupied by indigenous peoples in these areas, and the forms of landholding.

The Government indicates in its report that it is prepared to continue moving forward with the land demarcation and title process. The Government indicates that, during the period 2007–16, 23 territories were demarcated, titled and registered in favour of indigenous communities, with 16 titles granted for territories in the North Caribbean Coast Autonomous Region, four titles granted for territories in the South Caribbean Coast region and three titles granted in the “special status zone”. The titles have benefitted 304 indigenous communities and cover an area of land equivalent to 28.95 per cent of the national territory. The Government indicates that the legal process of verification and remediation (saneamiento), which is the fifth and last stage of the process of legalizing indigenous territories in the autonomous regions of the Caribbean, is a highly complex national issue. The Committee notes the adoption of Presidential Decree No. 15-2013 establishing the Interinstitutional Commission for the Protection of Mother Earth in the Territories of Indigenous Peoples and Peoples of African Descent in the Caribbean and Alto Wangki-Bocay Regions, whose objectives include mediating and finding alternative solutions to, where possible, conflicts involving others occupying areas belonging to indigenous communities. With regard to the Pacific, Central and North regions of the country, the Government indicates that the authorities of indigenous peoples consider that their ownership titles have been registered and are fully and legally effective. However, the Government indicates that difficulties have arisen regarding the recognition of collective ownership titles and the illegal occupation of land by landowners.

The Committee notes that the Government has implemented, with the support of the World Bank, the Land Administration Project (PRODEP), which aims to facilitate the demarcation, titling and registration of the property rights of indigenous peoples in the departments of Nueva Segovia, Jinotega and Rivas. According to Report No. PIDC536 published by the World Bank, the number of beneficiaries of the Second Land Administration Project (PRODEP II) at 31 December 2017 had increased to 633,627 persons and 92,995 households. The Committee notes the Government’s indication regarding the lack of consensus among the communities with respect to the Project and the official cartographic maps drawn up by the Nicaraguan Institute for Territorial Studies.

The Committee welcomes the efforts made to ensure the effective protection of the right to ownership and possession of land of indigenous peoples, and requests the Government to continue providing information on the results of the processes of demarcating and titling the traditional territories of the peoples covered by the Convention, within the scope of the regime established for the autonomous regions of the Caribbean Coast (Act No. 445) and also for the communities in the Pacific, Central and North regions. The Committee also requests the Government to provide information on the participation of indigenous and tribal peoples in the implementation of PRODEP II, and on the procedures established to resolve the disagreements between communities, and between communities and third parties, with regard to demarcation processes.

The Committee is raising other matters in a request addressed directly to the Government.