46
163.
In Admissibility Report No. 78/06 the IACHR delimited the object of the controversy, to
include a possible violation of Article 21 of the American Convention due to the lack of guarantee of the
right to property of the ancestral territory of the indigenous communities represented by the Lhaka Honhat
Association in correlation with their right to prior consultation and to preserve the identity of their territory.
This issue was thus expressly incorporated into the subject-matter of the litigation before the interAmerican system, with full notice to the parties.
2.
Issues not in dispute
164.
Both the petitioners and the State have expressed their agreement on two issues that
need not be addressed in resolving the present claim. First, both parties, and in particular the State, at the
provincial and national levels, have expressly acknowledged that the indigenous communities that inhabit
Fiscal Lots 14 and 55 have the right to property in their ancestral territory. Indeed, the State, at the
national and provincial levels, has repeatedly expressed its manifest will to formally allocate such
property, in compliance with the provisions of the Constitution and domestic legislation. In this sense,
what is under discussion is not these communities’ right to receive property title, but rather the effective
allocation of that title. Second, both parties recognize that the rights of the non-indigenous inhabitants of
the area are not at issue in the present case.
C.
The indigenous right to property (Article 21 of the convention, in connection with
Articles 1.1, 2, 8 and 25)
1.
Legal framework for the analysis of the territorial claims process
1.1.
Indigenous peoples’ right to suitable and culturally adequate property title to
ancestral territory
165.
The legal controversy between the parties with regard to the property title to the ancestral
territory centers on the modality of the title. The communities that form part of the Lhaka Honhat
Association claim a single communal property title which is shared by all, on account of their nomadic
hunter-gatherer way of life. The Provincial Government of Salta, and a few indigenous communities of the
area that do not form part of the Association, have opted for separate communal property titles for each
community. This debate necessarily requires consideration of the inter-American legal standards
regarding the suitability and cultural adequacy of territorial property title. The application of these
standards to the facts of the case is not a simple process, given the manifest divergences that exist
between the different indigenous communities with regards to this matter.
166.
The IACHR has pointed out that in relation to indigenous and tribal peoples, States are
under the obligation of “granting [them] lands, at no cost, of sufficient extent and quality to conserve and
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develop their ways of life” . Lands are of sufficient extension and quality if the members of the
indigenous community are guaranteed the continuous exercise of the activities from which they derive
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their livelihood, and on which the preservation of their culture depends.
The right to a territory of
sufficient quality and extension is particularly relevant for certain types of indigenous and tribal peoples
whose sociocultural specificity and concrete situations require a special level of protection. In the case of
hunter-gatherer indigenous communities, who are characterized by itinerant residence patterns and
traverse their territory along culturally established circuits that follow the availability of natural resources,
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IACHR, Third Report on the Situation of Human Rights in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001,
Chapter IX, par. 50, Recommendation 1.
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The IACHR has recommended States, in this sense, to “promptly adopt any such measures as may be necessary to
enforce the right to property and possession of the ancestral territory of [indigenous communities] and [their] members, specifically
to (…) guarantee the members of the Community the exercise of their traditional subsistence activities”. IACHR, Report No. 73/04,
case of the Sawhoyamaxa Indigenous Community (Paraguay), October 19, 2004, Recommendation 1. Cited in: I/A Court H.R.,
Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of March 29, 2006.
Series C No. 146, par. 8.