16 indigenous families of the Cabécar people face a threat of eviction from the recovered farm Kono Jú, where they live, due to a resolution of an agrarian court. This is the first time that a court has ruled that indigenous people must abandon a farm within their own territory, which is China Kichá, in the southern part of the country.
However, both the Vice Minister of the Presidency in Citizen Dialogue, Randall Otárola, as well as the authorities of the Rural Development Institute (Inder), said that they cannot interfere with the decision of the Judiciary and that they are prevented from acting in any way.
The Kono Jú farm, which means land of tepezcuintles in Cabécar, is in Pérez Zeledón, on the way to the town of Pacuar, near San Antonio La Amistad.
Efraín Fernández, an indigenous Cabécar who recovered the farm along with 16 other people, told that the group entered the farm that measures around 250 hectares on May 25, 2019 and immediately began to sow the land, which had been dedicated to extensive livestock. They have already harvested two crops. “Right now we have planted rice, corn and beans, just for this time, some have been planted for 1 month, they are tiny,” he said. “The families built their ranches with palms and sticks from the field, following their traditions, he added”.
Case is still in agrarian court
Gustavo Oreamuno Vignet, from the Association of Popular Initiatives Ditsö and the Coordinadora de Lucha Sur Sur, explained that the land, which is within the indigenous territory of China Kichá, was usurped by an Ángel Marín Espinoza who was dedicated to livestock and named the place Hacienda La China R y L SA.
In 2019 the man filed a lawsuit before an agrarian court, with which he intends to clarify at the legal level who is the true owner of the farm. This is processed under file 19-000033-1555-AG. The recoveries and their legal representation answered the claim. Then, the farmer requested an advance precautionary measure before a Court in Buenos Aires, Puntarenas, so that while the trial is being resolved, he would be restored to possession of the land and allowed to re-enter the farm to develop intensive livestock.
On October 7, 2019, that Court of Buenos Aires rejected the precautionary measure because it says that allowing him to put the cattle would be like solving the matter on the merits and anticipating the resolution of the trial.
“The requested precautionary claim has the same effects as an estimated judgment, which is the restitution of possession and in those terms it cannot anticipate that pronouncement. Precautionary measures cannot under any context resolve the merits of the matter. The requested precautionary measure is declared inadmissible,” the document reads.
The farmer, and his special lawyer Thais Vidal, appealed that rejection and now an agrarian court of the Second Judicial Circuit of San José agreed with them. According to the vote N ° 288-F-2020 of March 27, 2020, “the precautionary measure requested by the plaintiff is accepted and the co-defendants must put the plaintiff in possession of the property in order to continue carrying out the agricultural activity productive that it has been developing, until the present matter is resolved on the merits”.
Responsibility of the Executive and Judicial Power
For Gustavo Oreamuno, “the ruling suffers from weaknesses and contradictions; it means the expulsion of the recuperators, returning to the state before the judicial process began, and the judgment is practically being advanced by the court ”.
“The comrades have the land planted with corn, cassava, beans, rice and we already know that the cattle would destroy all these crops that the comrades have been sowing with so much sacrifice, dedication and will,” said the activist.
According to the recuperators and the China Kichá Integral Development Association (ADI), the Executive Branch did not do what it had to do to stop this situation that could violate the human rights of native peoples.
In his opinion, the Executive Power should promote a conciliatory measure or expropriation or administrative eviction process; and begin the real implementation on the ground of the RTI Plan (for the Recovery of Indigenous Territories). The recuperators and their legal representatives filed a legal recourse to try to annul the precautionary eviction measure.
The deputy minister issued a statement and a video, in which he stated: “This is the first time that a court has defined that indigenous people must abandon a farm within their own territory, despite the understanding of the collective right of properties in the territories. The implementation of this sentence makes it difficult to fulfill their rights and sets a precedent regarding their protection.”
For Otárola, the argument in Vote No. 288-F-2020 “is contrary to international jurisprudence on the matter” because the Inter-American Court of Human Rights has repeatedly insisted on the right of peoples to their lands, stating that “the close relationship that indigenous people have with the land must be recognized and understood as the fundamental basis of their culture”.
“Placing an agricultural activity above the indigenous right to land within a territory reserved for them is contrary to the perspective that should prevail in these cases,” he added. However, Otárola said he could not intervene. “Faced with this process, in which the Executive Power is not a party, the definition of the possession of the property is the power of the Judicial Power, so any decision cannot be interfered with by any institution outside of this power.”
Inder claims it cannot act
The reclaimers and their legal representatives also drew the attention of Inder and assured that their officials are required by law to be part of these judicial processes where disputes over territories belonging to indigenous peoples are discussed. They cite the Indigenous Law 6173 and the Law of Agrarian Jurisdiction Law 6734.
From there, Inder can demonstrate that the property title that this man has is invalid, clarify the legal situation of those lands and can exercise other types of judicial powers that guarantee the rights of the Cabecar people of China Kichá,” Oreamuno highlighted.
Inder, responded through its press office that “the eviction is ordered by a judicial authority that is firm without the possibility of further recourse, therefore, within the framework, it is within the powers of Inder and the legislation national, the institution is prevented from taking action in any way”.
Regarding the appearance of the judicial process, they indicated: “We do not know which norm it refers to” and added that “the Inder, through the RTI Plan, is executing the obligation that corresponds to it according to article 5 of the Indigenous Law, the which gives it the sole competence to relocate the occupants of indigenous territories when they so request, or to carry out the studies and procedures for expropriation and compensation in accordance with the Expropriation Law ”.
When requesting details about the progress of the implementation of the RTI Plan, it was detailed that said Plan consists of 7 main activities that must be carried out in each territory and that in the specific case of China Kichá, the activities of the 1st 5 and are starting activity 6 with the start of ordinary administrative procedure for 6 properties.
The history of a territory of 7,500 hectares
In the last two years there have been four land reclamations in China Kichá. “Practically all of Kichá China was in the hands of non-indigenous people, which is totally illegal and prohibited by national and international legislation; and due to different processes of violence, corruption and other forms of illegality, several people took over the entire territory,” said Oreamuno.
According to the indigenous Efraín Fernández, after they recovered Kono Jú, they were attacked on March 7, 2020. “We were attacked by more than 100 people in the four recoveries. They burned everything, we had total destruction, first of all in nature, they burned the forests, the farm, the ranches, we had gotten a hose to draw water from the spring that is inside the farm and as they burned the hose now we pulled the water in pichingas and gallons”, said Fernández.
The man said that his maternal grandfather was one of the first Cabécares to arrive in China Kichá “when it was a vacant lot and had no owner.” “Each one seized their land and thus the indigenous territory was formed in the 1930s.” Chína Kichá was defined as indigenous territory in 1957. However, the lands began to be illegally usurped and in 1982 this declaration was eliminated.
“The landowners arrived and began to remove the indigenous people, they were afraid, they threatened and deceived them, they signed transfers. In 2001 the lands were returned to us again. But in the eighties, this was 7,500 hectares and when they returned it, it only had little more than 1,000 hectares,” said Fernández.
Executive decree 29447-G of March 21, 2001 reinstated the declaration of China Kichá as indigenous territory. According to the judicial file in this case, on February 18, 1976, the recovered farm was transferred to the Institute of Lands and Colonization (ITCO); today Inder.