55
193.
The IACHR considers that the State of Argentina violated the rights established in
Articles 8 and 25 of the American Convention, in connection with Article 21 thereof, for two reasons: (a)
because of the successive modification of the procedures applicable to the indigenous territorial claim,
variations which took place no less than six times in the course of this process, and all of which were
indefinite and lacking in clarity; and (b) because of the ultimate ineffectiveness of the claim procedures to
afford effective enjoyment of the right to territorial property, two decades after the claim was initiated.
194.
The IACHR notes that the six successive variations in the applicable procedures were
introduced in an ad-hoc manner, that is, they were not due to a change in the legislation in force as such,
but rather to a sequence of actions, namely: the initiation under such legislation of unconcluded
proceedings, the adoption of specific decrees that varied the initial procedures introducing concrete
methodologies for the case of this claim, the opening of new parallel proceedings that contradicted the
course of action initially followed in order to allocate parcels to creole and indigenous families, and
thereafter the establishment of new procedures and methodologies for territorial adjudication by the
decisions adopted by the Provincial Government since 2001, which did not even refer to the legislation in
force any more, but established an apparently autonomous normative and methodological framework,
which was tailored along the way, in some cases with the agreement of the parties involved in the
process, and is currently unfolding in its last stages.
195.
In sum, the protracted land regularization process of Lots 14 and 55, which was initiated
with the first claim presented by the indigenous communities in 1991, has been marked by the successive
variation of the applicable procedures to be followed. This clearly implies that the indigenous communities
have not been afforded a specific, clearly regulated and suitable procedure to obtain their territorial
property title. The main result of this complicated sequence of ad hoc modifications of the applicable
procedure has been a profound legal insecurity, which has prevented the petitioner indigenous
communities, their leaders and representatives, to have a minimum degree of certainty as to which are
the steps to be followed in order to obtain a territorial property title, thus causing marked levels of
uncertainty among their members.
196.
Moreover, the result of this situation has been that the indigenous communities of Lots 14
and 55 have not been afforded an effective procedure to obtain the recognition of the ownership of their
ancestral territory. With this, the IACHR considers that a violation of Articles 8 and 25 of the American
Convention was proven, in connection with Article 21 thereof.
2.3.
The development of a participatory process since October, 2007.
197.
It is clear that the communities that form part of the Lhaka Honhat Association have
consistently persisted in their claim to a common, shared territorial property title. In the same sense, it has
been proven that during the preceding stages of the territorial claim process, the Government of Salta
prompted indigenous chiefs and communities to accept individual parcels and abandon the claim to a
common property title; but the IACHR does not have precise or sufficient information to conclude that the
communities who are currently requesting a separate community property title have done so as a result of
that strategy deployed by the Provincial Government. Without inferring their reasons or their motives, the
proven fact is that several communities are requesting a separate community property title, not shared
with the rest.
198.
In response to the observations made by the petitioners on the adjudication proposal of
the Province of Salta, which were received on September 9, 2005, the Provincial Government introduced
substantial modifications into the proposal, which reflect and accommodate the nine issues raised as
objections by the Lhaka Honhat Association; inter alia, the Government (i) established that indigenous
territorial rights would be the guiding criteria for the proposal, (ii) assigned the power to solve conflicts
between the parties in case of lack of agreement to the Broadened Board, (iii) expressly opened the
possibility of issuing joint communal property titles to the indigenous communities that so request, and (iv)
reiterated the prohibition of tending wire fences in the area, applicable to both the creole population and
the indigenous.