23
The rights of ownership and possession of the peoples concerned over the lands, which they
traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases
to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but
to which they have traditionally had access for their subsistence and traditional activities.
93.
ILO Convention 169, which is part of Honduran domestic legislation, also establishes
obligations of consultation and participation of indigenous peoples in matters that affect them and several
provisions pertain to rights to their lands, effective protection in the area of contracting and employment,
social security and services of health, education and means of education.
94.
In the instant case, the ancestral presence of the Garifuna Community of Punta Piedra
has not been disputed by the State, nor has it introduced any evidence to contradict or challenge the
evidence proving their longstanding link to the land. On the contrary, the State has expressly recognized
before the IACHR that the Community is entitled to collective ownership over the territory it has
historically occupied, and this recognition is reflected by its granting in 1993 and 1999 of full title in fee
simple to 800.64 hectares and 1,513.54 hectares respectively.
95.
As was noted, in the instant matter, the property right of the Punta Piedra Community
over its territory is not at issue, nor is the granting legal ownership title that recognizes such a right, but
rather the obligation to ensure peaceable possession through clearing of title and effective protection from
third parties.
96.
In this regard, the IACHR has held that ensuring effective enjoyment of territorial property
by indigenous or tribal peoples and their members is one of the ultimate objectives of this right’s legal
protection. States have the obligation to adopt special measures to secure the real and effective
96
enjoyment of indigenous peoples’ right to territorial property. For this reason, the IACHR has
emphasized that “the demarcation and legal registry of the indigenous lands is in fact only the first step in
its establishment and real defense,” given that the ownership and effective possession are constantly
97
being threatened, usurped or eroded by various de facto or legal acts.
97.
The IACHR has also held that indigenous or tribal peoples have the right to be protected
from conflicts with third parties over land, through prompt granting of property title, and delimitation and
98
demarcation of their lands without delay, in order to prevent conflicts and attack by others. In this same
vein, indigenous or tribal peoples and their members are entitled to their territory being reserved for
themselves, without there being within their lands any settlements or the presence of third parties or nonindigenous settlers. The State has the obligation to prevent the encroachment or settlement of indigenous
or tribal territory by other individuals, and to take the necessary steps and actions to relocate those non99
indigenous inhabitants that may be settled on it.
The IACHR has viewed encroachment and illegal
intrusion of non-indigenous settlers as threats, usurpation and infringement of the rights to property and
effective possession of the territory of the indigenous and tribal peoples, that the State is obliged to
100
control and prevent.
96
IACHR, Indigenous and Tribal Peoples’s 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, par. 86.
97
IACHR, Report on the Human Rights Situation in Brazil. Doc. OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29, 1997,
par. 33.
98
IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II, Doc. 54, September 30, 2009, par. 1137 –
Recommendation 2. IACHR, Indigenous and Tribal Peoples’s 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, par. 113.
99
IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II, Doc. 54, September 30, 2009, par. 1137 –
Recommendation 2. IACHR, Indigenous and Tribal Peoples’s 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, par. 114.
100
IACHR, Report on the Human Rights Situation in Brazil. Doc. OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29, 1997,
Chapter VI, pars. 33 40. IACHR, Indigenous and Tribal Peoples’s 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, par. 114.