Indigenous Rights in the Inter-American System: The Amicus Brief of the Assembly of First Nations in Awas Tingni v. Republic of Nicaragua

In October 1995, the Awas Tingni community of Nicaragua presented a petition to the Inter-American Commission on Human Rights (the "Commission") asserting that the government of Nicaragua had breached its obligations under both domestic and international law by failing to guarantee the community's use and enjoyment of its ancestral lands. ¹ Those lands, which consist of rain forest located along the northern Caribbean coast of Nicaragua, were the subject of a thirty-year concession for road construction and timber exploitation awarded by the government to a Korean corporation, Sol del Caribe, S.A. ("SOLCARSA"). The Awas Tingni, a Mayagna-speaking people, reside on the lands in accordance with a traditional system of land tenure and subsist on the lands primarily by family and community farming; their culture and social structure are closely tied to their historic occupation of those lands. ²

After a series of unsuccessful mediation attempts, the Commission took up the admissibility and substance of the Awas Tingni complaint in accordance with Article 50 of the American Convention on Human Rights. ³ In October 1997, the Commission issued a request for precautionary measures to be taken by the government of Nicaragua, in particular calling for the suspension of the SOLCARSA concession in order to avoid irreparable harm to the lands in issue. In March 1998, the Commission issued a report calling for the establishment of a legal procedure for demarcation and recognition of the Awas Tingni's land rights in a manner acceptable to the indigenous community. ⁴ The case has now been presented by the Commission to the Inter-American Court of Human Rights in accordance with the compulsory jurisdiction granted to that Court under Article 61 of the American Convention on Human Rights. ⁵

The Awas Tingni complaint raises a number of significant issues of interpretation and application of human rights law, in particular with respect to Article 21 of the American Convention on Human Rights--the right to property. ⁶ Protection of the lands occupied by indigenous peoples as a human right is itself recognized in the Nicaraguan Constitution, ⁷ as well as in various international conventions ⁸ and proposed international instruments. ⁹ The conflict between the collective, undocumented land rights of indigenous communities and the resource and development interests of national governments and their corporate partners presents, however, a case of first instance for the Inter-American Court of Human Rights. Accordingly, in addition to the Commission's own submissions, a number of amicus briefs have been filed with the Court by indigenous communities and advocacy groups on behalf of those communities, both in Nicaragua and elsewhere in the Americas.

What follows is the Amicus Curiae Brief submitted to the Inter-American Court of Human Rights by the Assembly of First Nations, the national representative organization of Canada's indigenous peoples. ¹⁰ The brief canvasses the relevant issues of international human rights law and its domestic applications, as well as Canadian constitutional principles governing indigenous rights and co-management arrangements with respect to resource development on indigenous peoples' lands. It is presented here in an effort to contribute to the growing body of applied international human rights literature and in the hope that international and comparative law advocacy will become a more prominent feature of the human rights litigation landscape.

The Amicus Curiae Brief of the Assembly of First Nations

I. Introduction

1. The Assembly of First Nations ("AFN") is the national representative organization of the over 630 indigenous nations ("First Nations") in Canada. The goal of the AFN is to promote a relationship between the Crown, First Nations, and the people of Canada based on peaceful coexistence, equitable sharing of...