Report No. 78 (2006) IACHR. Petition No. 12.094 (Argentina)

• Petition Number: 12.094
• Report Number: 78
• Court: Inter-American Comission of Human Rights
• Respondent State: Argentina
• Case Type: Admissibility
• Alleged Victim: Comunidades Aborígenes Lhaka Honhat

REPORT Nº 78/06 PETITION 12.094 ADMISSIBILITY ABORIGINAL COMMUNITY OF LHAKA HONHAT (“OUR LAND”) ARGENTINA October 21, 2006 I. SUMMARY 1. On August 4, 1998, the Aboriginal Communities Association Lhaka Honhat (hereafter "the petitioners" or the “Lhaka Honhat Association"), with the support of the Center for Legal and Social Studies (Centro de Estudios Legales y Sociales, CELS) and the Center for Justice and International Law (Centro por la Justicia y el Derecho Internacional, CEJIL), presented a petition before the Inter-American Commission on Human Rights (hereafter "the Commission", "the Inter-American Commission", or "the IACHR") for violation of the rights to life (Article 4), the right to humane treatment (Article 5), the right to privacy (Article 11.2), the right to information (Article 13), the right to freedom of association (Article 16), the right to freedom of movement and residence (Article 22), the right to judicial protection (Article 25), in concordance with the general obligation to respect human rights, recognized in Article 1.1 of the American Convention on Human Rights (hereafter “the Convention” or “the American Convention”) and in Articles XI, XII, XIII and XXII of the American Declaration on the Rights and Duties of Man (hereafter the Declaration), against the Argentine Republic (hereafter “the State”, the “Argentine State”, or “Argentina”), to the prejudice of the indigenous communities that make up the Lhaka Honhat Association, and that live in State-owned or “fiscal” lots (lotes fiscales) 14 and 55 of the Municipality of Santa Victoria, Department of Rivadavia, Province of Salta, for failing to consult them on various public works projects in the context of the integration plan for MERCOSUR (the Common Market consisting of Argentina, Paraguay, Brazil and Uruguay, with participation of Chile), since 1995. The Lhaka Honhat Association consists of 35 indigenous communities of the Mataco (Wichi), Chorote (Iyjwaja), Toba (Quom), Chulupí (Nivacklé), and Tapiete (Tapy´y) ethnic groups. In the Chaco-Salteño Region, fiscal lots 14 and 15, there are approximately 45 indigenous communities (numbering between 6000 and 7000 people), who belong to nine indigenous villages, and are living together with 2600 criollos (persons of non-aboriginal origin). 2. The petitioners maintain that, although the national Constitution and the Constitution of the Province of Salta recognize indigenous peoples' communal possession and ownership of the lands they have traditionally occupied, and guarantee their participation in the management of their natural resources and other interests affecting them, to date those rights have received no legal recognition. 3. As of its first response, the State offered to make itself available to begin a friendly settlement procedure with the petitioners, through the National Institute of Indigenous Affairs (INAI), for the purpose of recognizing community possession and ownership of the lands on which these communities were living, pursuant to Article 75 (17) of the national Constitution. The petitioners agreed to initiate a friendly settlement procedure at the end of 2000, on condition that the State first stop the construction works that gave rise to this complaint, and that it undertake no new surveys and subdivisions, until an agreement could be reached on how the lands in fiscal lots 14 and 55 should be distributed. 4. In July 2005 the Province of Salta called a referendum, to be held in October 2005, whereby residents of the Department of Rivadavia were to indicate whether they were in agreement that the lands corresponding to fiscal lots 14 and 55 should be turned over to their current occupants. That move, together with the lack of consensus on the manner in which the land should be turned over to the indigenous communities, led the petitioners to break off the friendly settlement procedure that had been underway for five years. 5. With respect to admissibility, the petitioners argue that their petition is admissible because domestic remedies have been exhausted: they cite the lack of consultation with the communities, and invoke the exception of Article 46.2 of the Convention to the requirement of exhaustion of domestic remedies, on the grounds that Argentine law offers no effective procedure to delimit, demarcate and grant ownership of indigenous lands under "single title" (título único). The State maintains that domestic remedies have not been exhausted. 6. Without prejudging the merits of the case, the IACHR concludes in this report that the case is admissible, for it meets the requirements of Article 46 of the American Convention. The Commission consequently has decided to notify this decision to the parties and to continue its analysis of the merits of the case relating to the alleged violation of the right to due process (Article 8), the right to freedom of thought and expression (Article 13) in connection with political rights (Article 23), the right to private property (Article 21) and the right to judicial protection (Article 25), recognized in the American Convention, in relation with the general obligations enshrined in Articles 1 and 2 of that instrument. The Commission has also decided to publish this decision and to include it in its annual report to the OAS General assembly. II PROCEEDINGS BEFORE THE COMMISSION 7. The complaint was submitted by the petitioners to the Executive Secretariat of the Commission on August 4, 1998. The IACHR received additional information on December 29, 1998, and transmitted the petition and the additional information to the State on January 26, 1999, requesting that it report to the Commission within 90 days. On May 7, 1999 the State requested an extension for presenting its response, and the Commission granted this extension on May 10 for a period of 30 days. On June 7, 1999, the State requested a further extension, which the Commission granted on June date for a period of 30 days. Finally, the State responded to the IACHR on July 7, 1999. On July 29, 1999 the IACHR transmitted that response to the petitioners, giving them 20 days to present their observations. 8. The petitioners presented their observations on August 18, 1999, indicating among other things that they were willing to initiate the INAI mediation process offered by the State in its communication of July 7, 1999, on the condition that the government undertake in advance to stop the works that gave rise to this petition, and to abstain from any further acts in the territory, and particular the delivery of dwellings to the members of the community individually. The petitioners also asked the Commission to grant precautionary measures. Those observations were transmitted to the State on August 24, 1999. 9. The Commission received a request from the petitioners on August 20, 1999 to hold a hearing during its 104th session. That hearing was held on October 1, 1999. 10. On October 18, 1999, the State requested an extension for submitting its response, and on November 9, 1999 the Commission granted this extension for 15 days. On November 24, 1999 the Commission received the observations requested from the government. Those observations were transmitted to the petitioners on December 9, 1999, giving them 30 days to submit their response, together with any new or supplementary information. The petitioners responded on January 10, 2000, repeating their request of August 18, 1999 for precautionary measures. 11. On February 18, 2000, before rendering its decision on the appropriateness of precautionary measures, the IACHR asked the State to report within 15 days on the impact that the planned civil works would have on the territory occupied by these communities. 12. On June 7, 2000, the petitioners wrote to the IACHR with updated information on the situation that gave rise to the petition, and requested the IACHR to make the necessary arrangements for beginning the friendly settlement procedure proposed by the State in its communication of July 7, 1999. 13. On September 25, 2000, the petitioners again requested the Commission to adopt precautionary measures. On September 25 the IACHR transmitted this request to the State, giving it 16 days to respond. On October 12, 2000 a hearing was held during the 108th regular session of the IACHR. 14. On October 19, 2000, the Commission transmitted to the petitioners information sent by the State on October 16. On November 3, 2000 the State sent information which was transmitted to the petitioners on November 10, 2000, giving them 15 days to submit any observations. On November 30, 2000, the petitioners reported to the Commission on the first meeting held under the friendly settlement procedure with representatives of the State on November 1, at which the IACHR Rapporteur for Argentina was present. 15. The friendly settlement procedure between the petitioners and the State continued from November 1, 2000 until July 20, 2005, when the petitioners advised the Commission of their decision to terminate that procedure. During that period of nearly five years, numerous hearings and working meetings were held between the parties, both in the Province of Salta and in the city of Buenos Aires. As well, a number of working meetings and hearings were held during the ordinary sessions of the Commission. 16. During the working meeting held at IACHR headquarters on March 2, 2005, still within the context of the friendly settlement procedure, the representative of the Province of Salta delivered to the national government, to the petitioners and to the IACHR a copy of the land delivery proposal prepared by the Province of Salta. The national government and the petitioners undertook to present their observations within 30 days. 17. On March 16, 2005 the petitioners requested an...