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land they have traditionally used and occupied for centuries. Without them, the very physical and
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cultural survival of such peoples is at stake.
216.
In the instant case, as a result of the failure to grant a suitable and culturally appropriate
title, the Community has been prevented from continuing to carry out its traditional subsistence activities,
such as fishing, hunting, the gathering of medicinal plants, and the extraction of resources needed for the
construction of its dwellings, all of which are necessary for the development and exercise of its culture.
The IACHR must also point out that, as ascertained above, the insufficiency and inadequacy of the land
titled, together with the destruction of the Community’s crops by third parties in its territory, even led some
members of the Community to abandon traditional farming practices and to a shortage of traditional food
stuffs, all of which are factors needed for the preservation of the Garífuna people’s culture.
217.
In light of the above, the IACHR considers that the belated recognition of part of the
ancestral territory and the denial of a single title based on historical occupation and customary use of the
territory by the Community of Triunfo de la Cruz and its members, to ensure the preservation of its
traditional way of life, constituted a violation of Article 21 of the American Convention in connection with
Articles 1.1 and 2 thereof.
ii)
Right to the delimitation, demarcation, and effective protection of the exclusively
indigenous ancestral territory
218.
As the IACHR has pointed out, ensuring effective enjoyment of territorial property by the
indigenous peoples and their members is one of the ultimate objectives of judicial protection of this right.
The States are obliged to adopt special measures to guarantee effective enjoyment of the territorial
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property of the indigenous peoples. For this reason, the IACHR has emphasized that “demarcation and
legal registry of the indigenous lands is in fact only the first step in the establishment and real defense of
those areas,” since effective property and possession are continually threatened, encroached upon, or
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curtailed by various de facto or legal actions
219.
The IACHR has also pointed out that indigenous and tribal peoples have a right to be
protected from conflicts with third parties over the land, by being promptly granted a title deed and by
means of expeditious delimitation and demarcation of their land, so as to prevent conflicts and attacks by
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others. In that same context, indigenous or tribal peoples and their members are entitled to have their
territory reserved for themselves, without the existence on their land of settlements or the presence of
third parties or nonindigenous settlers. The State has a corresponding obligation to prevent the invasion
or colonization of the indigenous or tribal territory by other persons and to take the steps and actions
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needed to relocate the nonindigenous inhabitants of the territory that are currently settled there.
The
IACHR has described the invasions and illegal intrusion by nonindigenous settlers as threats,
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I/A Court H.R, Case of the Yakye Axa Indigenous Community. Judgment of June 17, 2005. Series C No. 125, paragraph 137; I/A
Court H.R, Case of the Sawhoyamaxa Indigenous Community. Judgment of March 29, 2006. Series C No. 146, paragraph 121.
Likewise, the Court has stated that: “…the cultural and economic survival of indigenous and tribal peoples, and their members,
depend on their access and use of the natural resources in their territory “that are related to their culture and are found therein”, and
that Article 21 protects their right to such natural resources”. I/A Court H.R. Case of the Saramaka People v. Suriname. Preliminary
Objections, Merits, Reparations, and Costs. Judgment of November 28, 2007. Series C No. 172, paragraphs 85-96; I/A Court H.R.,
Case of the Yakye Axa Indigenous Community. Judgment of June 17, 2005. Series C No. 125, paragraph 137, and I/A Court H.R.,
Case of the Sawhoyamaxa Indigenous Community. Judgment of March 29, 2006. Series C No. 146, paragraph 118.
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IACHR, Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources. Norms and
Jurisprudence of the Inter-American Human Rights System. OEA/Ser.L/V/II.Doc.56/09, December 30, 2009, paragraph 86.
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IACHR, Report on the Situation of Human Rights in Brazil. Doc. OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29,
1997, paragraph 33.
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IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II, Doc. 54, December 30, 2009, paragraph
1137 – Recommendation 2. IACHR, Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources.
Norms and Jurisprudence of the Inter-American Human Rights System. OEA/Ser.L/V/II.Doc.56/09, December 30, 2009, paragraph
113.
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IACHR, Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources. Norms and
Jurisprudence of the Inter-American Human Rights System. OEA/Ser.L/V/II.Doc.56/09, December 30, 2009, paragraph 114.