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113.
Likewise, pursuant to the jurisprudence of the Inter-American system, States are
obligated to adopt measures to ensure and provide legal certainty to the rights of indigenous and tribal
peoples with respect to legal ownership of their properties, among other things, by establishing special,
timely and effective mechanisms and procedures to settle legal claims over such property. As established
by the Inter-American Court, the aforementioned procedures must adhere to the standards of due
process of the law, as must do any other procedure, the decision of which may affect the rights of
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individuals.
114.
These special mechanisms and procedures must be effective. The Inter-American Court
has examined, in light of the requirements of effectiveness and reasonable time set forth in Article 25 of
the American Convention, whether or not States have established administrative procedures for the
titling, delimitation and demarcation of indigenous lands, and if so, whether or not they are implemented
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in practice; and it has explained that in order to meet the requirements set forth in Article 25, it is not
enough that legal provisions that recognize and protect indigenous property are in place – it is necessary
that specific and clearly regulated procedures exist, for matters such as the titling or demarcation of lands
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occupied by indigenous peoples, taking into account their specific characteristics,
and that such
procedures be effective in practice to enable the enjoyment of the right to territorial property – that is to
say, that in addition to the formal existence of the procedures, they must yield results or responses to
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violations of legally recognized rights.
115.
In the matter under examination, the IACHR notes that the petitioner OFRANEH and the
Punta Piedra Community, in accordance with the mechanisms afforded to them by domestic law,
undertook the necessary steps for recognition by the State by means of title to legal ownership of the
territory of the Community, which came about when the INA granted title in 1993 and 1999, respectively.
As mentioned earlier, that legislation consisted specifically in the Law of Agrarian Reform, approved
under Decree-Law No. 170-74 of December 30, 1974, in force as of January 14, 1975, which was
amended by the Law for the Modernization and Development of the Agricultural Sector, approved under
Decree No. 31-92 of March 5, 1992, in force as of April 6, 1992.
116.
As the IACHR has noted, in the present case the principal controversy refers to the
failure to clear title of the ancestral territories of the Community, especially the area granted in 1999. In
that regard, the IACHR notes that the above-mentioned legislation, based upon which the 1999 title was
granted, contains provisions related to the actions taken by the INA for the clearing of titles of fee simple
that such State institution provides, among them those referring to the “appraisal of expropriated or
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acquired lands” and its forms of payment. However, as it has been deemed proven, for years, as born
out by the facts, several efforts were made before the INA and other State authorities to get the State to
fulfill its duty to clear the titles of ownership granted to the Community, especially the one of 1999. These
actions included the filing of a complaint for usurpation in 2010 with the appropriate authority.
117.
To be certain, the Commission notes that the proven facts show that the State response
to resolving the intrusion in Rio Miel and clearing title to the Garifuna lands, for most part involved the
establishment of ad-hoc commissions; executing of commitment agreements between State authorities,
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IA Court of HR. Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparation and Costs. Judgment
June 17, 2005. Series C No. 125, par. 62. Case of the Sawhoyamaxa Indigenous Community. Merits, Reparation and Costs.
Judgment March 29, 2006. Series C No. 146, pars. 82 and 83.
121
IA Court of HR. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.
Judgment August 31, 2001. Series C No. 79, par. 115.
122
IA Court of HR. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.
Judgment August 31, 2001. Series C No. 79, pars. 122 and 123.
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IA Court of HR. Case of the Xákmok Kásek. Indigenous Community v. Paraguay. Merits, Reparations and Costs.
Judgment August 24, 2010 Series C No. 214, par. 140.
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See articles 64 to 78 of the Law of Agrarian Reform, amended by the Law for the Modernization and Development of
the Agricultural Sector.