Land Title Deeds in Protected Wildlife Areas

Here are a series of conclusions that have come out of a recent general study done in 2009 on land title deeds in Protected Wildlife Areas. Thus, it is concluded that:

• In Costa Rica there is a serious problem, from the legal, social, and land environmental points of view, in regard to people occupying protected wildlife areas which has not been solved yet.
• The agrarian development model, based on the Agrarian Development Institute (IDA) leadership in the country, is oriented to the rational production and exploitation of the land by the land owners.
• The situation got even worse when IDA acquired lands where the technical criteria did not recommend its purchase. In this case, IDA must draw up, systematize, and carry out a truly ordered plan for the region.
• intended for country farming and land settlements, with the predominant agricultural model so it can achieve the fulfillment of the agrarian development goals proposed in its institutional model.
• Out of the different laws designed in relationship to this subject, there has been the possibility of land title deeds in the protected wildlife areas. Nevertheless, these have been declared as unconstitutional by the Constitutional Hall. It is unclear what the intentions of the legislative body are, as it granted registration to thousands of land owners located in many of the protected wildlife areas, while disrespecting both the law and the orienting principles on the subject of environment.
• in the last two decades, due to the over-usage of natural resources and the social demand insuring the protection of the environment and the country’s natural resources, Costa Rica has assumed a more active role towards the defense of the forest resources. It is important to highlight this, at least in theory, because, in practice, the protected wildlife areas have been left unprotected.
• To date, IDA still holds the State Natural Patrimony under its domain, which must be transferred and then registered on behalf of the Ministerio de Ambiente y Energía (MINAE) in the National Registration.
• It is necessary that the State, using self-guardianship, simply proceed to evictions or increase the protection of the protected wildlife areas, with the aim of avoiding new occupants.
• In relationship to the creation of newly protected wildlife areas, they must be created through the express will of the legislative staff. It is not just about creating protected wildlife areas, it is about proper technical feasibility studies of land holdings in these areas. And something important to keep in mind is establishing the minimal financing to purchase these areas, in order to protect and manage the area.
• Residents’ claims of being able to register the property upon which they have lived for so many years, or that they have owned according to the suppositions of law, must not be seen as an illegitimate claim. But a justified claim in terms of both a registering and a social order. As they have limitations when applying for housing bonuses and national financing system credits, and so remain unprotected in relation to possible claims against their property. That is how a new owner, with his legal title deed at hand, could eventually settle on the commercial property. He could even mortgage his property in order to develop his countryside plantation or, simply to set up a mini enterprise. On the other hand, a land title deed would individualize the new owners so they would be obligated to make contributions to their respective municipalities, and would increase those local government’s finances.
• These protected wildlife areas should be kept out of the trade affairs of man. Thus, they are declared unalienable, imprescriptible, and un-seizable, and possession is not permitted for a free title deed. As a consequence, if they are intended to be exploited or used by particular people, this must be conducted through the mediation of any legal institute that provides the respective authorization. In that way, the State could confer a Concession or a Permission that allows the rational use of these goods, but under the conditions and restrictions contemplated in the law.
• According to reports out of the Republic General Comptroller’s Office, there are approximately 20,000 families living on protected wildlife areas with ownership status.
• It is imperative that the State act as an institution responsible for the situation that is taking place in many wildlife protected areas, and where the essence of the natural resource is being affected. Due to the direct or indirect activities of thousands of land owners who were never meant to establish on such areas, and due to its negligence and omission, these have now jeopardized the environmental balance in those conservation zones. Solid long-lasting solutions must be considered.
• The right of private property in Costa Rica is subject to limitations and regulations, as they are supposed to satisfy both the private and the social interests.
• The role of the State must be seen as both the protector of the environment and, inherently, responsible for the damages caused to it. It must not be forgotten the obligations that the Political Constitution entrusts upon the State for watching over the protection and preservation of the natural environment.

In regard to the legal institute of possession, related to the protected wildlife areas, it may be concluded that:

• The thousands of people who today are found in the protected wildlife areas claim that they have possession of these lands, and a right to defend their rights to remain on them. However, it is unacceptable that titles are based on “possession” of the protected wildlife areas.
• The only possible exclusion where the land possession may have legal effects on the protected wildlife areas is in the case of possession for at least 10 years before a submission to the special regime of public domain.
• In the case of the thousands of land owners on the protected wildlife areas who, with the remote possibility that they truly protected the forest resource, may be granted ownership only if they owned the land for at least 10 years before that land was declared a protected wildlife area.
• A pro natura interpretation proposed in this study would be, with the promulgation of the Forest Law N° 4465 in 1969, to declare them inalienable and not subject to possession by any particular people. Since 1969, any forest land located in a national reservation is not subject to becoming titled land by means of possession.
• Nowadays there is an IDA-MINAE Inter-Institutional Commission on Transfer of Lands which is carrying out the orders of the Republic General Comptroller’s Office, and was formed to solve or to put a stop to this situation of squatting areas belonging to the State Natural Patrimony.
• In this IDA-MINAE Inter-Institutional Commission on Transfer of Lands, the regional directors of their respective conservation areas are the ones in charge of carrying out the field studies in coordination with the IDA representatives. In order to define the actual situation of lands that are supposed to be transferred to MINAE, and keep them free of human settlements. The aim of this inter-institutional commission is to study and approve the transfer of the State Natural Patrimony lands, from IDA to MINAE, and not be transferring a squatter’s problem or, in some other cases, the usurpation of lands from one institution to another.
• The studied problem is serious, and the State’s omission has contributed to the problem’s advance. In this regard, there has been a lot of registration of lands that used to belong to the State over to the ownership of particular people.
• Ecotourism is proposed as a lateral outcome which may not solve the studied problem, but at least diminish the possible risks of environmental degradation. Thus, this touristic modality is conceived as a means to conduct the management of all of the resources. In such a way that all economic and social needs are satisfied, while the cultural integrity, the biological diversity, and the systems for supporting life remain respected.
• In this regard, both the jurisprudential and the administrative lines have been very restrictive in regards to the use and exploitation of the protected wildlife areas. Maybe because of the lack of knowledge about the benefits that some eco-touristic activities within certain protected wildlife areas could bring to the country.
• To date, a degradation of the natural resources by the impact of the thousands of land owners has been occurring within the protected wildlife areas. However, that degradation might be controlled if some parallel actions would be taken. Supported by fairer laws and economic development policies, as well as information for those land owners about the positive impact that adequate policies on sustainable development might have in the very near future for their children and their descendants.
• The State is the one truly responsible for these problems. Indeed, the inactivity, the State’s omission, and its restrictive jurisprudential line, have pretended to ignore a very serious problem related to the forest resource protection. All these problems decrease with the possibility of a sustainable development for many inhabitants in these zones which, in the long term, will only generate both social and environmental stability.

A final recommendation would be the need for a follow-up analysis relating to the regularization of the rights related to the real estate property under a special regime (ABRE), and to conduct a detailed study on the implemented actions for identifying, preventing, and resolving the conflicts of ownership and use of the land in these areas.

This article was excerpted from a thesis intended to obtain a Degree in Graduate Law at the Universidad of Costa Rica, and written by Walter Obando Corrales in 2008.

Translated into English by: Abelardo Canelo.