66
226.
In effect, neither the construction of the international bridge over the Pilcomayo River, nor
the public tender and awarding process for the construction of Route 86, nor the adaptation works of
Route 54, nor the works of improvement of the provincial road between Santa Victoria Este and La Paz,
neither the granting of the oil and gas concession, complied with the minimum standard that requires (a)
satisfying the requirements established in Article 21 for cases of expropriation, (b) not threatening the
subsistence of the indigenous communities that inhabit Fiscal Lots 14 and 55, (c) being preceded by a
prior, free and informed consultation, (d) being preceded by social and environmental impact
assessments in accordance with international parameters, or (e) securing the participation of the
indigenous communities in the benefits derived from each project. The State did not comply, in any of
these cases, with its obligations of allowing and promoting access to the respective public information by
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the affected indigenous communities .
227.
The fact that these indigenous communities did not have a territorial property title formally
recognized by the State authorities heightens the international responsibility of the Argentinean State,
because –as established by the inter-American system’s jurisprudence-, the safeguards of the right to
property under inter-American human rights instruments can be fully enforced by indigenous and tribal
peoples in relation to territories that belong to them but which have not yet been formally titled,
demarcated or delimitated by the State, and also in relation to territories whose possession they have
lost, partially or totally. States violate indigenous and tribal peoples’ right to property when they grant
concessions for the exploration and exploitation of natural resources or carry out public works in untitled,
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undemarcated or unprotected territories.
Following this line, the IACHR has established that States are
in the obligation of “carry[ing] out the measures to delimit, demarcate and title or otherwise clarify and
protect the corresponding lands of the [indigenous] people without detriment to other indigenous
communities and, until those measures have been carried out, abstain from any acts that might lead the
agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the
existence, value, use or enjoyment of the property located in the geographic area occupied and used by
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the [respective] people” .
228.
For the above reasons, the IACHR considers that the State of Argentina violated the right
to territorial property established in Article 21 of the Convention and the right of access to information
established in Article 13, as well as the right to participation established in Article 23, to the detriment of
the indigenous communities that form part of the Lhaka Honhat Association, petitioner in the present
case.
E.
Deforestation of the territory by illegal logging
229.
The IACHR considers it pertinent to recall, in relation to the issue of deforestation of the
ancestal territory, that the indigenous communities who inhabit this area have (a) the right to property of
the natural resources present in their territory, and (b) the right to environmental integrity, which create
clear obligations of prevention and immediate action on the part of the State authorities, including the duty
to control and punish illegal extraction of wood.
230.
The Inter-American human rights system’s jurisprudence on indigenous peoples’ right to
communal property has explicitly incorporated, within the material scope of the right to property, the
natural resources traditionally used by indigenous peoples and linked to their cultures, including uses
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Copy of letter sent on March 22, 2001 to the Foreign Ministry. Copy of a letter sent on March 22, 2001 to the
Government of Salta. Copy of the response letter from the Foreign Ministry dated March 27, 2001. Annex to a communication sent
by the petitioners on July 19, 2001.
242
CIDH, Application to the Inter- American Court on the case Pueblo Kichwa of Sarayaku y sus miembros vs. Ecuador,
26 de abril de 2010, parr 125. CIDH Informe No. 40/04, Caso 12.053, Comunidades Indígenas Mayas del Distrito de Toledo v.
Belice, 12 de octubre de 2004, parr. 142 y 143.
243
CIDH, Informe No. 40/04, Caso 12.053, Comunidades Indígenas Mayas del Distrito de Toledo v. Belice, 12 de octubre
de 2004, párr. 197 – Recomendación 2.