2. Governments shall take the measures necessary to determine the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.
3. Adequate procedures shall be established within the national legal system to resolve land claims filed by the peoples concerned.\"
In development of this provision, the Indigenous Law (Ley Indígena) (number 6172 of November twenty-ninth, nineteen seventy-seven), orders in its Article 9, regarding the lands belonging to the Boruca peoples, the following:
\"Article 9.- The lands belonging to ITCO included in the demarcation of the indigenous reserves, and the Boruca-Térraba, Ujarrás-Salitre-Cabagra Reserves, shall be ceded by that institution to the indigenous communities.\"
In development of the precepts described above, Executive Decree (Decreto Ejecutivo) number 8516, of May second, nineteen seventy-eight, which \"Orders the Registration of Indigenous Reserves as State Patrimony\" establishes in its Article 3:
\"Article 3.- ITCO shall prepare the survey plans based on the coordinates and limits defined by the National Geographic Institute (Instituto Geográfico Nacional) and CONAI in the aforementioned decrees.\" (It refers to Decrees 5904-G, 6036-G and \"other concordant ones\", which established the respective indigenous reserves)
On the other hand, constitutional jurisprudence has been extensive in recognizing the fundamental rights of indigenous communities as such and of their inhabitants in particular. In this regard, in judgment number 1786-93, at sixteen hours and twenty-one minutes of April twenty-first, nineteen ninety-three, it was stated:
\"I.- In Costa Rica, nine autochthonous groups subsist in different 'reservations' totaling 30,500 inhabitants or nearly 1% of the national population, approximately. These are:
a) Nombre35602: 6700 members. They live in the cantons of Talamanca, province of Limón and of Buenos Aires province of Puntarenas down to the southern Pacific.
b) Nombre46486: 8300 members. They live in the canton of Talamanca, of Limón: in Chirripó of the canton of Turrialba, Province of Cartago and in Buenos Aires of Puntarenas.
c) Nombre63774 (borucas): 2660 members, they inhabit Buenos Aires of Puntarenas.
ch) Nombre63775: 855 members, they live in the canton of Mora, province of San José.
d) Nombre63776 (GUATUSO): 520 people, they inhabit Guatuso of the province of Alajuela.
e) Nombre63777 (CHOROTEGA): 793 people. They live in the cantons of Hojancha and Nicoya of the province of Guanacaste.
f) TERIBE (TERRABA): 1504 people. They live in Buenos Aires of Puntarenas. 8000 hectares.
g) GUAYMI: 2036 people. They inhabit the cantons of Corredores, Coto Brus, Golfito and Osa of the province of Puntarenas.
These peoples occupy 22 so-called reservations, a term that has for them a connotation of isolation, of confinement, when it is more correct to define them as territories, which encompass more than 322,000 hectares.
II.- In view of the foregoing, the Chamber recognizes that the fact that one or several autochthonous populations were conquered and colonized by the Spanish and after independence remained in depressed conditions, has not been able to create any right of the dominant populations to ignore those inherent to the human dignity of the indigenous people. Thus, our Political Constitution must be interpreted and applied in a way that allows and facilitates the independent life and development of the ethnic minorities that inhabit Costa Rica, without other limits than those same human rights impose on the conduct of all men. In the same way, the clauses of international instruments and common legislation must be developed when applied to indigenous peoples. Neither the passage of time, nor numerical, technological or economic superiority are justifications to destroy, exploit or depress minorities, much less when dealing with the most 'natural' of our natives.\"
Likewise:
\"VII.- In addition to the infraction indicated in the preceding recital (considerando), at the time the questioned decree was issued, Convention 107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries was in force and duly approved by the Legislative Assembly of Costa Rica, by means of Law N° 2330 of April 9, 1959, in force as of April 17 of the same year. Such instrument in its Article 3 provides for the obligation of the signatory States to adopt special measures for the protection of the institutions, persons, property and labor of indigenous populations, as long as their social, economic and cultural situation prevents them from benefiting from the general legislation of the country to which they belong. Such regulation, in accordance with Article 7 of the Constitution, has a rank superior to the law and consequently, to the reformist decree.
VIII.- Article 11 of the convention in question, contemplated the duty of the State to recognize the right of ownership, collective and individual, in favor of the members of the indigenous populations over the lands traditionally occupied by them. These territories, traditionally occupied by these groups, were recognized in Decree 5904-G by the Costa Rican State, by setting the limits of the Guatuso Indigenous Reserve, such that any variation to the detriment of its original area would be in contraposition to what is stipulated in Article 11 of the International Convention ratified by Costa Rica, since the reduction of the limits of the Guatuso Indigenous Reserve, by the questioned Decree, meant a reduction in the surface area of the lands traditionally occupied by the Indigenous people of Guatuso, a detriment that in accordance with Decree °7962-G is about two hundred and fifty hectares.
IX.- If subsequently, the governmental authorities became aware that within those lands – traditionally occupied by the indigenous people whose limits had been set by Decree 5904 – there existed non-indigenous populations, the procedure to follow to achieve the separation of such populations should have been different from that used in the reformist decree, because what was contemplated there was the exclusion from the Guatuso Indigenous Reserve of the towns of Los Angeles and San Jerónimo (Cucaracha), which brought as a consequence, and as deduced from the content of Executive Decrees N° 5904-G and 7962-G, that the latter reduces the area of the Reserve by about 250 hectares, which formed part of the lands traditionally occupied by the indigenous people. With such action, they violated Article 11 of the International Convention of the International Labor Organization 'Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries'. It is, then, a violation, via decree, of the rights of the indigenous people recognized in an international convention, since if by Decree 5904-G and by Law N°6172 it had been established which was the territory that the indigenous people had been traditionally occupying, its area could not later be reduced by decree, given that in accordance with the cited Convention, a right arose in favor of the indigenous people to a territory whose extension was fixed and concretized in those norms. It must be kept in mind that we are not simply facing the modification of one decree by another, but the violation of an international human rights norm, which in accordance with Article 48 of the Political Constitution, also has constitutional rank. For greater abundance, if the cited convention urged the States to recognize to the indigenous people the lands that these had traditionally occupied, and, in compliance with that, the Costa Rican State by Decree 5904-G and by means of Law N°6172 recognized a determined area as the territory that the Maleku indians had been traditionally occupying, with this it made effective the right contemplated in the Convention, which cannot be modified by decree, since this implies a violation of the Convention itself. Thus, Articles 1 and 2 of Decree 7962-G that refer to the Guatuso Indigenous Reserve are inapplicable for being contrary to the Constitution and to Convention 107 ratified by Costa Rica, and consequently the appeal must be granted, for which the Executive Branch must initiate the corresponding legal procedures to make effective the occupation of the Melekus indigenous people within the lands traditionally occupied by them, whose limits were recognized in Executive Decree N°5904-G of March eleventh, nineteen seventy-six and the Indigenous Law N°6172 of November 29, 1977.\" (Judgment number 06229-99, at fourteen hours and thirty minutes of August eleventh, nineteen ninety-nine)
\"(…)
From the reading of the administrative file, it results that the formality of the consultation has indeed been omitted, a situation that violates due process with respect to the fundamental rights of the interested indigenous peoples, leaving them unable to defend the natural environment of their lands and their right to develop with a guarantee of their quality of life (Article 13 of the cited Treaty and 50 of the Political Constitution)(…)\" (Judgment number 2000-08019, at ten hours and eighteen minutes of September eighteenth, two thousand)
There is no doubt, therefore, that the Costa Rican State has broadly recognized the rights corresponding to the indigenous groups that inhabit the country. The same can be said regarding the specific communal property right that corresponds to such communities by reason of their traditional belonging. The groups of persons belonging to the autochthonous communities have the right to live on the lands where they have historically been settled, and the State must fully guarantee the enjoyment of this fundamental right. To this end, national legislation provided for the registry transfer of such lands to the respective indigenous communities (Law number 6172, Article 9, transcribed above), imposing on the Institute of Agrarian Development (Instituto de Desarrollo Agrario) the duty to proceed to carry out all necessary steps in order to guarantee the effective verification of said transfer. Now then, based on what is stipulated in Article 3 of Decree 8516-G (transcribed above), the institute drew up the respective plans based on the information contained in the National Geographic Institute and the National Commission on Indigenous Affairs (Comisión Nacional de Asuntos Indígenas). However, the Federated College of Engineers and Architects refused to authorize the approval of the plans, conduct that was endorsed by this same Chamber in judgment number 2001-05831, at seventeen hours and three minutes of July twenty-seventh, nineteen ninety-nine, in the following sense:
\"I.- The appellants claim injury to their fundamental rights, given that the Federated College of Engineers and Architects has denied the authorization for the approval of plans for the lands that through Decrees numbers 5804-G and 6036-G were established as indigenous reserves, alleging that the field survey (levantamiento de campo) has not been carried out in those zones, which – according to the respondent – constitutes a sine qua non requirement for authorization, in accordance with the regulations governing the matter. Likewise, the appellant affirms that this procedure is arbitrary, because the respondent had already authorized fifteen of the twenty-two plans that correspond to the area in question, without the fulfillment of the mentioned requirement having been demanded.
II.- In accordance with the report of the respondent – which is given under oath, with timely warning of the consequences, including criminal ones, provided for in Article 44 of the Law of Constitutional Jurisdiction – it is estimated that the field survey as a requirement for the granting of plan approval constitutes an indispensable one for the concession of the same, given that according to the provisions governing the matter – Article one of Law number 4294 of December 19, 1965, and Articles 48, 49, 51, 52, 58 and 59 of the Regulation to the National Cadastre Law, Executive Decree number 13607-J of April 24, 1982 – it consists of a technical necessity. In this order of ideas, it is observed that the fact that compliance with this requirement was not demanded for the granting of approval of plans submitted to prior inspection does not have the virtue of creating a subjective right in favor of the appellants that they can oppose to the action of the respondent College.
III.- On the other hand, the plaintiffs are not correct when they allege that this action by the respondent places them in a state of discrimination with respect to other indigenous communities for whom the approval was authorized without the demand of the mentioned requirement, given that equal treatment cannot be sought for a situation that contravenes the law, in other words: the fact that an approval of plans was previously authorized without managing the completion of the field survey does not give rise for the respondent to the obligation to treat the appellants in the same way, given that this practice 'contra legem' does not create any subjective right in favor of the promoters that deserves the protection of this Chamber. From the foregoing it follows that the demand of this requirement is a regulated power of the respondent College, and it cannot make a discretionary practice of it. Consequently, the present appeal must be dismissed.\"
Consistent with what was expressed in the judgment just transcribed, this Chamber is clear that neither the Federated College of Engineers and Architects nor, in its case, the National Cadastre (Catastro Nacional) can be required to act in disregard of the rules imposed by the legal system for the survey and registration of topographic plans. Thus, Article 1 of the Law on the Practice of Topography and Surveying (agrimensura) provides:
\"Article 1.- It is understood by:
SURVEYING (AGRIMENSURA): The survey and staking out of polygons, calculation of the comprised area, subdivision of non-urbanized areas, location of existing natural and artificial details within the area, preparation and interpretation of land descriptions for incorporation into deeds or other documents, preparation of plans in horizontal projection of the terrain and their link with the system of cartographic projections in use in the country.
TOPOGRAPHY: What is included in surveying, leveling, development of profiles and cross sections, calculation and compensation of earthworks (movimientos de tierras), establishment on the ground of the lines and levels of construction projects from information obtained from the plans, geometric vertical and horizontal verification of the works during their construction, survey of already built works, topographic triangulations, staking out of developments, of the geometry of highways, canals and railways, and hydrographic surveys.\"
As can be seen, the requirement of a field survey is an indispensable requisite for the cadastral survey of the plan. For that same reason, the mention made in Article 3 of Decree 8516-G to the limits and coordinates established by the National Geographic Institute, the National Commission on Indigenous Affairs and Decrees 5904-G, 6036-G must be understood in the sense that it does not authorize the Institute of Agrarian Development to ignore the other legal requirements necessary for the registration of documents before the Public Registry of Immovable Property and of plans before the National Cadastre. The foregoing is the only interpretation that this Chamber can give to the set of norms in question, in order to allow the Institute of Agrarian Development to comply with the commitment established in Article 9 of Law 6172 (developing, as was said, Convention number 169 of the International Labor Organization), without disrespecting the hierarchy of norms established in our legal order.
Thus, the Chamber considers that the action of the Institute of Agrarian Development has been remiss, because instead of acting in accordance with the order of sources disciplined in Article 6 of the General Law of Public Administration and ordering the field survey of the respective plans, it simply assumed a passive position in the face of the rejection of the first plans carried out by the Federated College of Engineers and Architects. It is for the foregoing that this court understands that the action of the respondent Institute has injured the rights of the members of the indigenous communities in question, reason for which the present amparo appeal must be declared with merit, ordering the Institute of Agrarian Development to immediately initiate the necessary steps to carry out the topographic surveys necessary to transfer (registrally) to the corresponding indigenous communities, the lands belonging to the Boruca-Térraba reserve. Said plans must be completed no later than six months after the notification of this judgment.