78.
The petitioners argue that they have exhausted all
available legal remedies within the domestic jurisdiction of the Argentine
State in their quest to achieve recognition of the right to community
property, under a legal form that would allow them to continue their
socioeconomic pattern of subsistence and their special way of life, and in
order as well to demand that the necessary social and environmental
impact studies be performed for the design and execution of various
public works projects that would affect their way of life, and that the
exception of Article 46.2 of the Convention is therefore applicable
because Argentine law does not provide any effective procedure for
delimiting, demarcating and granting single title over indigenous lands.
79.
In its initial response of July 7, 1999, the State argued
that while the petitioners had pursued and exhausted all domestic
remedies with respect to constitutional protection, they had not fulfilled
the requirements of Article 46.1 of the American Convention. On this
point, the State noted that there is another adequate channel for
resolving such a complex situation, and that the petitioners should have
attempted a procedure that would have addressed the substance of the
issue. Subsequently, after the breakdown of the friendly settlement
procedure in 2005, the National State argued that while this petition
arose as a result of works related to the international bridge between
Misión La Paz and Pozo Hondo, from the outset the dialogue had been
dominated by the question of the distribution of State lands from lots 55
and 14 as the central issue on the indigenous side, yet on this point
there had been no exhaustion of local jurisdiction.
80.
On the other hand, the Province of Salta sent to the
Commission a letter indicating that the petitioners had not exhausted all
domestic remedies, for which reason the petition should be declared
inadmissible. The Province argued that the federal Supreme Court, in
its judgment of June 15, 2004, had quashed the ruling of the provincial
Supreme Court and had ordered the Court of Salta to issue a new
judgment taking into account the foregoing points, which to date had
not been issued.
81.
The Commission notes that the State has had many
opportunities to resolve the substance of the matter, i.e. effective
enforcement of the property rights of members of the Lhaka Honhat
Association. The petitioners have filed several motions since 1999 to
ensure that fiscal lots 14 and 55 be demarcated and awarded to the
community, taking into account its way of life, but to date that right has
not been recognized. To date, the judgment of the federal Supreme
Court of June 15, 2004 has not been implemented by the Supreme
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