INDIGENOUS AND TRIBAL PEOPLES’ RIGHTS OVER THEIR

ANCESTRAL LANDS AND NATURAL RESOURCES

Norms and Jurisprudence of the Inter-American Human Rights System

D.        Delimitation and Demarcation of Ancestral Territory

94.              Indigenous peoples and their members have the right under Article XXIII of the American Declaration of the Rights and Duties of Man[264] and under Article 21 of the American Convention on Human Rights[265] to delimitation and demarcation of their territory by the State.[266]  Indeed, the main mechanism the organs of the system have identified[267] to guarantee indigenous territorial property rights is the delimitation and demarcation of the lands that belong to indigenous peoples.[268]  The Inter-American Court has explained that it is necessary to materialize the territorial rights of indigenous peoples through the adoption of the legislative and administrative measures necessary to create an effective delimitation and demarcation mechanism, which recognizes such rights in practice.[269]  In fact, “merely abstract or juridical recognition of indigenous lands, territories, or resources, is practically meaningless if the property is not physically delimited and established.”[270] The IACHR has generally held that the State obligation to recognize and guarantee the exercise of the right to communal property by indigenous peoples “necessarily requires the State to effectively delimit and demarcate the territory to which the people’s property right extends and to take the appropriate measures to protect the right of the [corresponding] people in their territory, including official recognition of that right”.[271]

95.              The lack of demarcation and granting of title over ancestral lands, in preventing or hampering access by indigenous and tribal peoples to their territories, and the use and enjoyment of the natural resources that are located therein, places them in a situation of extreme vulnerability that bears a direct impact upon their other human rights, including the rights to food, safe drinking water and health.[272]  To the same extent, “the recovery, recognition, demarcation, and registration of the lands represents essential rights for cultural survival and for maintaining the community's integrity”.[273]  The absence or tardiness of granting of title and demarcation of indigenous and tribal peoples’ ancestral territories can also heighten the impact of projects for the exploration and exploitation of natural resources in said territories, and generate violent conflicts between such peoples and third parties around those extractive projects.[274]  The lack of demarcation of the ancestral lands of indigenous communities constitutes, consequently, a violation of Articles 21, 1 and 2 of the American Convention on Human Rights.[275]

96.              Indigenous and tribal peoples have a right to special, adequate and effective[276] procedures for the delimitation, demarcation and granting of title of their territories.[277]  Owing to the specific traits of indigenous communal property, these procedures must be different from the general mechanisms for granting of title over agrarian property that are available to other sectors of society.  The mere adoption of legislative or administrative mechanisms that are adjusted to these standards is insufficient if they do not lead, in practice, to guaranteeing the right to communal property within a reasonable time.[278]  The Inter-American Court will examine procedures for land titling, demarcation and delimitation to ensure conformity with the requirements of effectiveness and reasonable time established in Article 25 of the American Convention.[279] 

97.              In the Awas Tingni case, the Nicaraguan Constitution and legislation recognized indigenous peoples’ right to property over their lands and natural resources, but there did not exist a specific procedure to make such right effective through territorial demarcation. Consequently, the demarcation of indigenous communities’ territories had to be carried out in the framework of the existing agrarian legislation, one that promoted land distribution in accordance with criteria of proportionality and economic profit.[280]  According to the Court, the absence of special demarcation mechanisms was a violation of Article 25 of the Convention.[281]  Said mechanisms must also be effective, in the sense that has been broadly elaborated by the jurisprudence of the system.[282] States violate the right of the members of indigenous communities to use and enjoyment of their territory when they fail to delimit and demarcate their communal property, as required by Article 21 of the American Convention.[283]

98.              The international obligation to define and demarcate the precise territory encompassed by indigenous and tribal peoples’ property rights must be carried out by States in full collaboration with the respective peoples.[284] In more general terms, the State mechanisms to demarcate indigenous lands must involve the peoples’ full participation.[285]  All of the phases of the procedure to delimit and demarcate indigenous and tribal territories, including the very creation of the mechanisms and procedures, must be carried out with the full participation of the directly affected peoples, as bearers of the right to communal property.[286]

99.              The IACHR has reiterated that the State obligation to effectively delimit and demarcate indigenous peoples’ ancestral territory “necessarily includes engaging in effective and informed consultations with the [respective] people concerning the boundaries of their territory,”[287] taking into account their traditional land use practices and customary land tenure system.[288]

100.          The demarcation of their lands should be carried out without delays,[289] and States must abstain from acting in a negligent or arbitrary manner in relation to indigenous communities’ requests for territorial demarcation.[290]  Nonetheless, territorial demarcation procedures must fulfill the ultimate objective of guaranteeing effective use and enjoyment, by indigenous communities, of their right to communal property, with the complexities that are inherent to this type of procedures.  In this sense, the Court has applied flexible criteria in establishing time limits to carry out territorial demarcation, in relation to specific cases where it has identified a violation of the right to property. For example, in the Awas Tingni case, the Court ordered Nicaragua to grant title over the community lands within a term of 12 months starting on the date of publication of the judgment.[291]  In the Yakye Axa and Sawhoyamaxa cases, which involved the resolution of a property conflict with third parties in possession of the lands, that term was broadened to three years.[292]  Despite this temporal flexibility, prolonged and unjustified tardiness in attending demarcation claims has been regarded by the Court as a violation of Article 25 of the Convention.[293]

101.          Indigenous and tribal peoples have a right to the prevention of conflicts with third parties caused by land property, particularly in cases where tardiness in demarcation, or the lack thereof, have the potential to cause conflicts;[294] to that extent, indigenous and tribal peoples have the right to a prompt granting of title, delimitation and demarcation of their lands without delays, so as to prevent conflicts and attacks caused by the territorial claim processes.[295]  Indeed, the lack of demarcation of ancestral lands, or delay in demarcation, can cause serious territorial conflicts between indigenous and tribal peoples and third parties – often violent ones. Indigenous and tribal peoples, in these cases, have the right to obtain an urgent demarcation through procedures which are adequate and effective to conduct the process; to have the effective enjoyment of their right to property secured; to the prevention of the occurrence of such conflicts; to protection from attacks by the third parties with whom they have entered into conflicts; to an effective investigation and sanction of those responsible for the attacks; and to the establishment of special, prompt and effective mechanisms to solve legal conflicts over ownership of their lands.[296]  To that same extent, States must adopt “appropriate measures to guarantee the process of legal demarcation, recognition, and issuance to the indigenous communities of land titles, and to ensure that this process not prejudice the normal development of property and community life”.[297]

102.          The content of the different stages of delimitation, demarcation and granting of title has not been developed by the Inter-American jurisprudence.  This content must be regulated by States in accordance with their own specificities and legal traditions, but the measures taken must nonetheless conform to the above-described Inter-American guidelines.

Interim Territorial Protection Pending Delimitation, Demarcation and Titling

103.          The protective safeguards of the right to property under the Inter-American human rights instruments can be invoked by indigenous peoples in relation to territories that belong to them, but have not yet been formally titled, delimited or demarcated by the State. One of the main implications of this norm is that States cannot grant concessions for the exploration of exploitation of natural resources that are located in territories which have not been delimited, demarcated or titled, without effective consultations with and the informed consent of the people.[298]  Consequently, States violate Article XXIII of the American Declaration and Article 21 of the American Convention, unless they abstain from “granting logging and oil concessions to third parties to utilize the property and resources that could fall within the lands which must be delimited, demarcated and titled or otherwise clarified and protected, in the absence of effective consultations with and the informed consent of the [respective] people.”[299]  Following this line, the IACHR has established that until indigenous and tribal lands have been demarcated, delimited and titled, States must 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 the [respective] people.”[300]

104.          The Inter-American Court has adopted a similar position, in explaining the State must “abstain from carrying out, until that delimitation, demarcation, and titling have been done, actions 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 geographical area where the members of the Community live and carry out their activities”.[301]  The Court has demanded the same in subsequent cases.[302]  In the Saramaka case, the Court added that with regard to concessions already granted within traditional Saramaka territory without consulting the affected people, “the State must review them, in light of the present Judgment and the Court’s jurisprudence, in order to evaluate whether a modification of the rights of the concessionaires is necessary in order to preserve the survival of the Saramaka people.”[303]

105.          In connection with the above, the IACHR has underscored that the absence or tardiness of granting of title and demarcation of indigenous and tribal peoples’ ancestral territories can heighten the impact of projects for the exploration and exploitation of natural resources in said territories, as well as cause violent conflicts between said peoples and third parties on account of such projects.[304]

106.          In sum, as the Court held in the Awas Tingni and subsequent cases, States may not design or implement development or investment plans or programs, nor grant concessions for the exploitation of natural resources, which can affect indigenous communities until their communal property rights have been fully identified and secured through the granting of title, delimitation and demarcation.[305]

E.         Possession and Use of Territory

107.          As part of the right to property protected under Inter-American human rights instruments, indigenous and tribal peoples have the right to possession, use, occupation and inhabitation of their ancestral territories.  This right is, moreover, the ultimate objective of the protection of indigenous or tribal territorial property: for the IACHR, the guarantee of the right to territorial property is a means to allow members of indigenous communities to possess their lands.[306]  This implies, in clear terms, that indigenous and tribal peoples have the right to live in their ancestral territories,[307] a right which is protected by Article 21 of the American Convention[308] and Article XXIII of the American Declaration,[309] and affirmed by the Inter-American Court: “Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory.”[310]  This also implies that OAS member States are under an obligation to respect and protect the collective right to possession of indigenous and tribal peoples’ ancestral territories through the adoption of “special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources.”[311]  Non-compliance with this obligation engages the State’s international responsibility.[312]

108.          As explained by the IACHR, general international legal principles applicable to indigenous and tribal peoples’ human rights include the recognition of their right to the possession of the lands and resources they have historically held,[313] as well as recognition by States of the permanent and inalienable user rights.[314]  The IACHR has also established that indigenous and tribal peoples’ right to the possession of ancestral lands is directly linked to indigenous persons’ right to cultural identity, insofar as culture is a way of life intrinsically associated to traditional territory;[315] and that by virtue of Articles II (right to equality), XVIII (rights to due process and fair trial) and XXIII (right to property) of the American Declaration of the Rights and Duties of Man, States are obliged to take “special measures to ensure recognition of indigenous peoples’ right to the occupation and use of their traditional lands and resources and their right not to be deprived of this interest except with fully informed consent, under conditions of equality, and with fair compensation”.[316]

109.          The Inter-American Court has associated indigenous and tribal peoples’ right to possession, use, inhabitation and occupation of ancestral territory to the very core of the right to property protected by Article 21 of the Convention.  The Court has pointed out that Article 21 of the American Convention recognizes the right to property, understood as the use and enjoyment of property,[317] and that precisely during the Convention’s travaux préparatoires, the expression “private property” was replaced for “use and enjoyment of his property.”[318] In this regard, the Court also clarified that “Property” can be defined as those material things which can be possessed, as well as any right which may be part of a person’s patrimony; that concept includes all movables and immovables, corporeal and incorporeal elements and any other intangible object capable of having value[319] -- a definition that is applicable, with due regard for the corresponding specificities, to the relationship established between indigenous and tribal peoples and their territories, with all of the elements that they comprise.  

110.          Indigenous and tribal peoples have the right to possession and control their territory without any type of external interference[320], given that territorial control by indigenous and tribal peoples is a necessary condition for the maintenance of their culture[321].  Article 21 of the Convention, in this sense, recognizes the members of indigenous and tribal peoples the right to freely enjoy their property, in accordance with their community tradition.[322]

111.          Traditional possession of ancestral territories has effects equivalent to those of State-issued full ownership property titles, and gives indigenous and tribal peoples the right to official recognition of their property.[323]  The Inter-American Court has explained that “as a result of customary practices, possession of the land should suffice for indigenous communities lacking real title to property of the land to obtain official recognition of that property, and for consequent registration.”[324]  At the same time, it must be emphasized that possession of ancestral territories is not a pre-condition for the existence, recognition or restitution of the right to property of an indigenous or tribal people; indeed, indigenous peoples or communities who have been deprived of  possession of their territories in whole or in part, preserve their full property rights over them, and have the right to claim and obtain their effective restitution.[325]  In the Moiwana village case, “the Court considered that the members of the N’djuka people were the ‘legitimate owners of their traditional lands’ although they did not have possession thereof, because they left them as a result of the acts of violence perpetrated against them.”[326]

112.          Indigenous and tribal peoples have the right to administer and exploit their territory in accordance with their own traditional patterns.  The Committee for the Elimination of Racial Discrimination has called on States Parties to the Convention, in its General Recommendation 23, to “recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources.”[327]  In application of this norm, the Inter-American Court ordered the Government of Suriname to respect and guarantee the right of the members of the Saramaka people to “manage, distribute, and effectively control such territory, in accordance with their customary laws and traditional collective land tenure system, and without prejudice to other tribal and indigenous communities.”[328]  Inter-American jurisprudence may not be interpreted to “impose an additional burden on the members of the Saramaka people by making them seek concessions from the State to continue to access the natural resources they have traditionally used, such as timber and non-timber forest products.”[329]
 

F.         Effective Security against Third Party Acts and Claims

113.          Indigenous and tribal peoples have a right to be protected from conflicts with third parties over land,[330] by acquiring prompt title, delimitation and demarcation of their lands without delays, so as to prevent conflicts and attacks by others.  When conflicts arise, indigenous and tribal peoples have the right to obtain protection and redress through procedures which are adequate and effective; to have the effective enjoyment of their right to property secured; to an effective investigation and sanction of those responsible for the attacks; and to the establishment of special, prompt and effective mechanisms to solve legal conflicts over ownership.[331]

114.          In this same field, indigenous and tribal peoples and their members have a right to have their territory reserved for them, and to be free from settlements or presence of third parties or non-indigenous colonizers within their territories.  The State has a corresponding obligation to prevent the invasion or colonization of indigenous or tribal territory by other persons, and to carry out the necessary actions to relocate those non-indigenous inhabitants of the territory who have settled there.  The IACHR has regarded illegal invasions and intrusions of non-indigenous settlers as threats, usurpations and reductions of the effective rights to property and possession of territory by indigenous and tribal peoples, which the State is in the obligation of controlling and preventing.[332]  In the same sense, Article 18 of ILO Convention No. 169 establishes that “[a]dequate penalties shall be established by law for unauthorized intrusion upon, or use of, the lands of the peoples concerned, and governments shall take measures to prevent such offences.”

115.          In some cases, the demarcation of indigenous territories has led to conflicts, occasionally of a large scale, with other indigenous communities who claim property over areas of traditionally shared use (such as forests or waters).  The resolution of these conflicts demands flexibility in the specific legal forms recognizing communal property, responding to the sui generis nature of communal property without ceasing to guarantee indigenous patterns of territorial use and occupation in accordance with the American Convention and the American Declaration.  Possible alternatives include recognition of the rights of access to and use by indigenous peoples of areas not exclusively possessed by them, including the use of spaces of a cultural or spiritual significance for them, and the quest for formulae of common use and management of natural resources in specific areas.  Accommodating the regime of indigenous communal property in the framework of domestic legal systems demands a consensual investigation into flexible models, which are able to grant juridical protection to the different indigenous forms of possession and use of their ancestral territories.  Whatever the specific formulae used for formal recognition of the right to communal property, said formulae must guarantee continuity of the different uses of territory by indigenous peoples, in all their complexity.

G.        Legal Conflicts over Territorial Property with Third Parties

116.          The effective recognition of indigenous communal property rights, including their rights over lands or territories that they do not effectively use or occupy but over which they claim restitution, may come into conflict with third parties’ property claims.  The Court has made clear that “the private property of individuals” and “communal property of the members of the indigenous communities,” are both protected by the American Convention,[333] and when these rights conflict, the issue must be resolved in accordance with the principles that govern limitations of human rights.[334]

117.          The Inter-American Court provides some guidelines for States to apply to resolve conflicts between indigenous territorial property and individual private property.  In all cases admissible restrictions to the enjoyment and exercise of property rights must be a) established by law; b) necessary; c) proportional, and d) their purpose must be to attain a legitimate goal in a democratic society.[335]

-          Article 21.1 of the American Convention states that the law may subordinate the use and enjoyment of property to the interests of society. “The necessity of legally established restrictions will depend on whether they are geared toward satisfying an imperative public interest; it is insufficient to prove, for example, that the law fulfills a useful or timely purpose.  Proportionality is based on the restriction being closely adjusted to the attainment of a legitimate objective, interfering as little as possible with the effective exercise of the restricted right.  Finally, for the restrictions to be compatible with the Convention, they must be justified by collective objectives that, because of their importance, clearly prevail over the necessity of full enjoyment of the restricted right.”[336]

-          “[T]he States must assess, on a case by case basis, the restrictions that would result from recognizing one right over the other.  Thus, for example, the States must take into account that indigenous territorial rights encompass a broader and different concept that relates to the collective right to survival as an organized people, with control over their habitat as a necessary condition for reproduction of their culture, for their own development and to carry out their life aspirations. Property of the land ensures that the members of the indigenous communities preserve their cultural heritage.”[337]

-          “Disregarding the ancestral right of the members of the indigenous communities to their territories could affect other basic rights, such as the right to cultural identity and to the very survival of the indigenous communities and their members.”[338]

-          “On the other hand, restriction of the right of private individuals to private property might be necessary to attain the collective objective of preserving cultural identities in a democratic and pluralist society, in the sense given to this by the American Convention; and it could be proportional, if fair compensation is paid to those affected pursuant to Article 21(2) of the Convention.”[339]

-          “This does not mean that every time there is a conflict between the territorial interests of private individuals or of the State and those of the members of the indigenous communities, the latter must prevail over the former. When States are unable, for concrete and justified reasons, to adopt measures to return the traditional territory and communal resources to indigenous populations, the compensation granted must be guided primarily by the meaning of the land for them”.[340]

118.          One frequent source of conflict between the property rights of indigenous or tribal peoples and third parties arises when possession of indigenous territory has been lost by a given indigenous group and the legal title to the property has been conferred on third-party owners.  In such cases, the Court has explained that “the members of indigenous peoples who have unwillingly lost possession of their lands, when those lands have been lawfully transferred to innocent third parties, are entitled to restitution thereof or to obtain other lands of equal extension and quality.”[341]  The preferential option for recovery of ancestral lands in favor of the corresponding indigenous or tribal group must be the starting point. It is a right of indigenous and tribal peoples for their territorial property not to be trumped, on principle, by third parties’ property rights.[342]  Implicit in this approach is the corollary that third parties who do not hold title in good faith have no legitimate expectations or bona fide property rights.  Such is the case, for example, of settlements or land grants made to individuals without regard to the indigenous peoples who have always lived there. 

119.          It must be borne in mind that, according to the Inter-American Court, the fact that the claimed lands have been transferred from one owner to another over a long period of time and are duly registered is not a sufficient motive to justify the lack of recognition of indigenous or tribal peoples’ right to property and restitution, nor does it exempt States from international responsibility for such lack of recognition.[343]  Indigenous and tribal peoples’ right to property and restitution subsists even though the claimed lands are in private hands, and it is not acceptable for indigenous territorial claims to be denied automatically due to that fact – in each case, a balancing must be carried out in order to establish limitations on one or the other property rights in conflict, in light of the standards of legality, necessity, proportionality and a legitimate purpose in a democratic society, taking into account the specificities of the respective indigenous people.[344]  The will of the current owners of ancestral lands cannot, per se, prevent effective enjoyment of the right to territorial restitution.[345]

120.          It must also be taken into account that indigenous and tribal peoples’ right to territorial property and restitution persists even though the lands may be productively exploited by their current owners.[346]  It is unacceptable for indigenous territorial claims to be denied automatically because of that fact, because the right to restitution would become meaningless. In each case, the required balancing must be carried out without privileging the productivity of the land or the agrarian regime.[347]  Regulations that favor productive exploitation of the land, and that visualize indigenous issues through that lens, do not afford a real possibility of restitution of ancestral lands.[348]  For the Inter-American Court, the fact that the claimed lands are being exploited productively is not a sufficient reason to deny indigenous and tribal peoples’ right to territorial property and restitution, and is insufficient justification to relieve the State of international responsibility[349] because “it fails to address the distinctive characteristics of such peoples.”[350]  Following a similar logic, in the Dann case, the IACHR rejected the argument that the Western Shoshone’s rights over their traditional territory could be legitimately extinguished based on “the need to encourage settlement and agricultural developments in the western United States”.[351]

121.          Likewise it must be recalled that, according to the Inter-American Court, the existence of bilateral investment treaties in force which protect the owners of the claimed lands does not justify the lack of enforcement or materialization of indigenous and tribal peoples’ right to territorial property and restitution, because the enforcement of bilateral commercial treaties must be made compatible with the American Convention, all the more so if they contain clauses that allow for the expropriation of the investments of nationals of one of the contracting parties for reasons of public interest or utility, “which could justify land restitution to indigenous people.”[352]  For the Inter-American Court, the enforcement of bilateral commercial treaties “should always be compatible with the American Convention, which is a multilateral treaty on human rights that stands in a class of its own and that generates rights for individual human beings and does not depend entirely on reciprocity among States.”[353]

122.          The foregoing considerations may be interpreted as a State duty to prioritize, in general terms, indigenous peoples’ rights in cases of conflict with third party property rights, insofar as the former are linked to indigenous and tribal peoples’ cultural and material survival.  This does not imply disregard for the right to fair compensation in favor of bona fide third party owners as a consequence of the limitation of their legitimate right to property in favor of communal property under Article 21 of the American Convention.  In relation to third parties who do not possess the property in good faith, it is the State’s responsibility to secure indigenous peoples’ enjoyment of the right to communal property, including the right to restitution.

H.        The Right to Restitution of Ancestral Territory

123.          Indigenous or tribal peoples who lose total or partial possession of their territories preserve their property rights over such territories, and have a preferential right to recover them, even when they are in hands of third parties.  The IACHR has highlighted the need for States to adopt measures aimed at restoring the rights of indigenous peoples over their ancestral territories,[354] and it has pointed out that restitution of lands is an essential right for cultural survival and to maintain community integrity.[355]  The IACHR considers the right to restitution of the lands and territories of which peoples have been deprived without their consent as one of the international principles appertaining to indigenous peoples’ rights over their lands, territories and natural resources. 

124.          According to the Inter-American Court, “the members of indigenous peoples who have unwillingly left their traditional lands, or lost possession thereof, maintain property rights thereto, even though they lack legal title, unless the lands have been lawfully transferred to third parties in good faith”[356] – case in which the indigenous have the right to recover them,[357] as a preferential option even in relation to innocent third parties.[358]  In instances where governments have made large land grants or sold indigenous territory, often with the people still living on the land, the recipients are unlikely to qualify as good faith innocent purchasers, because of their knowledge of existence and claims of the indigenous communities.  Indeed, such non-indigenous settlers often made use of members of the communities as low-paid or forced laborers.  The validity of such “titles” is thus questionable at best.

125.          For the Court, “possession is not a requisite conditioning the existence of indigenous land restitution rights;”[359] neither material possession nor the existence of a formal title to property are conditions for the indigenous right to territorial property, nor do they condition the right to restitution of ancestral lands, under Article 21 of the Convention.[360]

126.          Indigenous peoples’ right to restitution of their traditional lands has also been confirmed by the Committee for the Elimination of Racial Discrimination.  According to its General Recommendation No. XXIII on indigenous peoples, “where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, [States should] take steps to return those lands and territories”.[361]

127.          The application of this rule will vary. When the indigenous special relationship to land cannot be carried out because the members “have been prevented from doing so for reasons beyond their control, which actually hinder them from keeping up such relationship, such as acts of violence or threats against them, restitution rights shall be deemed to survive until said hindrances disappear.”[362]  In cases in which the relationship with the land is manifest through, inter alia, traditional hunting, fishing or gathering activities, if the indigenous carry out few or none of these activities inside the lands they have lost, due to causes that are beyond their will which have prevented them from doing so, the right to restitution persists, until such causes disappear and the exercise of that right has been made possible.[363]  Consequently, neither the loss of material possession, nor prohibitions on access to traditional territory by the formal owners are obstacles to the continuous territorial rights of indigenous communities.  In sum, neither the loss of possession nor the reduction or elimination of access to the land will void the right to restitution of the lost ancestral lands.[364]

128.          The Inter-American Court has questioned whether the right to restitution of lands has a temporal limit, or if it “lasts indefinitely in time.”  It has concluded that the right will last for as long as the fundamental relationship with ancestral territory subsists.[365]  The Court takes into consideration that the spiritual and material basis for indigenous identity is mainly supported by their unique relationship with their traditional lands: “As long as said relationship exists, the right to claim lands is enforceable, otherwise, it will lapse.”[366]  Following this rule, the IACHR has recognized safeguards for indigenous or tribal property rights in situations where, as in the Dann case, indigenous peoples were deprived of their territory in the past, insofar as the material, cultural or spiritual link with these territories is still in existence, and to the extent that the title to historic property can be documented[367] or otherwise proven.  The unique relationship to traditional territory “may be expressed in different ways, depending on the particular indigenous people involved and the specific circumstances surrounding it, and it may include the traditional use or presence, be it through spiritual or ceremonial ties; settlements or sporadic cultivation; seasonal or nomadic gathering, hunting and fishing; the use of natural resources associated with their customs and any other element characterizing their culture”.[368]  Any one of these modalities is secured by the right to property protected by the Inter-American human rights instruments, and grants the corresponding indigenous or tribal groups the right to territorial restitution.

129.          The Inter-American Court addressed the issue of restitution of indigenous lands in the case of Yakye Axa, in which “the court considered that the members of the Community were empowered, even under domestic law, to file claims for traditional lands and ordered the State, as measure of reparation, to individualize those lands and transfer them on a [gratuitous] basis”.[369]  

130.          There are situations in which indigenous peoples are not occupying or using their traditional lands for reasons of force majeure, whether because of the forced relocation of such peoples -including relocations for reasons or health, humanitarian or food crises-, or because of situations, generally associated to internal armed conflicts, which have forced indigenous peoples to abandon their lands because of a founded fear of being victims of violence.  In the case of the Moiwana Community v. Suriname, the Court held that the members of the community could be considered “the legitimate owners of their traditional lands; as a consequence, they have the right to the use and enjoyment of that territory [in spite of the fact] that they have been deprived of this right to the present day as a result of the [massacre of] 1986 and the State’s subsequent failure to investigate those occurrences adequately.”[370]  In a subsequent case, Sawhoyamaxa, the Court reaffirmed its prior jurisprudence, clarifying that indigenous title to communal property must be made “possible”, in the sense that it shall not be considered extinguished if the community has been unable to occupy or use its traditional lands “because they have been prevented from doing so for reasons beyond their control, which actually hinder them from keeping up such relationship.”[371]

131.          According to the judgment of the Inter-American Court in Sawhoyamaxa, “once it has been proved that land restitution rights are still current, the State must take the necessary actions to return them to the members of the indigenous people claiming them”.[372]  The State has the obligation to take “actions to enforce the rights of the community members over their traditional lands.”[373]  In order to make the right to territorial restitution effective, States must provide indigenous and tribal peoples effective and adequate administrative and judicial recourses, which present them with a real possibility of material restitution of their ancestral territories.  The IACHR has indicated that by virtue of Articles 25 and 8.1 of the American Convention on Human Rights, and of ILO Convention No. 169, “the State has the obligation to provide [indigenous communities] with an effective remedy for their territorial claim, to ensure that the Community is heard with due guarantees, and to establish a reasonable term to ensure the rights and obligations under its jurisdiction.”[374]  In turn, the Inter-American Court has clarified that by virtue of ILO Convention No. 169 – Art. 14.3, read in conjunction with Articles 8 and 25 of the American Convention, States have an “obligation to provide an effective means with due process guarantees to the members of the indigenous communities for them to claim traditional lands, as a guarantee of their right to communal property”.[375] For the Court, “non-existence of an effective remedy against the violations of basic rights recognized by the Convention constitutes in itself an abridgment of this treaty by the State Party in which there is such a situation.”[376]

132.          In relation to mechanisms for restitution, the IACHR has clarified that indigenous and tribal peoples have a right to legally established administrative mechanisms which are effective to solve definitively their territorial claims.[377]  The Inter-American Court has pointed out that indigenous and tribal peoples have a right not to be subjected to unreasonable delays in reaching a final solution of their claim;[378] that administrative procedures for the restitution of lands must be effective, and offer a real possibility for the members of indigenous and tribal peoples to recover their territories.[379]  Further, the general obligation to respect rights set forth in Article 1(1) of the American Convention places the States under the obligation to “ensure that said procedures are accessible and simple and that the bodies in charge of them have the necessary technical and material conditions to provide a timely response to the requests made in the framework of said procedures.”[380]

133.          As to judicial recourse for land restitution, the IACHR has clarified that States’ domestic legislation must provide, in addition to administrative mechanisms, an effective judicial process aimed at protecting indigenous peoples’ legitimate territorial claims and other rights, and that the absence of such recourse constitutes, per se, a violation of the American Convention, Articles 8, 25, 2 and 1.1.[381]  In this sense the IACHR has recommended States “to establish an effective and simple court remedy to protect the right of the Indigenous Peoples (…) to claim and access their traditional territories”.[382]

134.          The Court and the Commission have actively promoted respect for traditional authorities, leaders and other individual members of indigenous and tribal peoples and communities who undertake and head the initiatives, processes and actions of reclamation and recovery of ancestral territories.  On numerous occasions, the IACHR has adopted precautionary measures and the Inter-American Court has adopted provisional measures to protect these indigenous leaders and persons.  In a high number of these cases, the threats against the life or personal integrity of the members of indigenous communities are closely linked to their activities in defense of these communities’ territorial rights, particularly in relation to the exploitation of the natural resources that exist in their territory.  The IACHR has also pointed out that the lack of resolution of indigenous communities’ claims for territorial restitution puts the integrity of their members in danger[383].

135.          The IACHR has also explained that during the procedures to resolve land claims, the integrity of the claimed territory and its material possession by the claimants must be respected – hence the IACHR has held that evictions before the conclusion of indigenous peoples or communities’ territorial claims processes constitutes an obstacle to the effective enjoyment of their right to land and territory[384].  

136.          In connection with this, IACHR also considers that the promotion of settlement agreements by State authorities to solve indigenous and tribal peoples’ territorial complaints and claims can actually constitute an obstacle to the effective enjoyment of their territorial property rights, because in the course of the settlement negotiations, the precarious conditions of life of indigenous and tribal peoples may lead them to reduce or, in the worst cases, cede their territorial rights[385]  in exchange for immediate material benefits to which they are entitled in any case.

137.          The IACHR and Court recognize that the right to restitution of traditional territories is not an absolute right, and it finds a limit in those exceptional cases in which there exist objective and justified reasons which make it impossible for the State to restore the territorial rights of indigenous or tribal peoples and the communities that constitute them. The peoples and communities are nonetheless entitled to redress.  This has been explained by the Inter-American Court: “when a State is unable, on objective and reasoned grounds, to adopt measures aimed at returning traditional lands and communal resources to indigenous populations, it must surrender alternative lands of equal extension and quality, which will be chosen by agreement with the members of the indigenous peoples, according to their own consultation and decision procedures.”[386]  The State has the burden to prove, with sufficient arguments, that there exist objective and prevalent grounds that justify the failure to afford restitution of indigenous and tribal peoples’ property and territory.[387]

138.          Indigenous and tribal peoples’ right to restitution subsists even when the claimed lands are in private hands.  It is not acceptable for indigenous territorial claims to be denied automatically because of the fact that the claimed lands are in the hands of private owners; in each case, a balancing must be carried out in order to determine the limitation of one or the other property rights in conflict, in light of the standards of legality, necessity, proportionality and legitimate objective in a democratic society, bearing in mind the special obligations owed indigenous peoples[388] and the above-explained factors and criteria.  In this regard, it must be underscored that the transfer of claimed lands from one owner to another over a long time, even if duly registered, is not a sufficient motive to justify the lack of concretion or materialization of indigenous and tribal peoples’ right to property and territorial restitution, nor to relieve States from international responsibility for such lack of materialization.[389]

139.          The right to devolution of lands must be regulated in such a way as to offer a real possibility of recovering the traditional lands; no such real possibility is offered by regulations that restrict all possibilities to awaiting the will of the current holders of the land, forcing the indigenous to accept alternative lands or monetary compensations.[390] “Otherwise, restitution rights become meaningless and would not entail an actual possibility of recovering traditional lands, as it would be exclusively limited to an expectation on the will of the current holders, forcing indigenous communities to accept alternative lands or economic compensations. In this respect, the Court has pointed out that, when there be conflicting interests in indigenous claims, it must assess in each case the legality, necessity, proportionality and fulfillment of a lawful purpose in a democratic society (public purposes and public benefit), to impose restrictions on the right to property, on the one hand, or the right to traditional lands, on the other”.[391]  The will of the current owners of ancestral lands cannot, per se, prevent the effective enjoyment of the right to territorial restitution; the conflicts must be solved by the authorities carrying out the corresponding balancing between the rights and interest in conflict in each case of indigenous territorial claims.[392]

140.          Indigenous and tribal peoples’ rights to territorial property and restitution persist even when the lands are being exploited in a productive manner by their current owners.[393]  The fact that the claimed lands are being productively exploited by their owners does not constitute a sufficient motive to justify the lack of restitution of the territory of indigenous and tribal peoples, nor does it liberate the State from international responsibility.[394] Regulations that privilege criteria of productive exploitation of the land, and which approach indigenous issues from that perspective, do not offer a real possibility of restitution of ancestral lands.[395]  In the words of the Inter-American Court, “in cases of exploited and productive lands it is a responsibility of the State, through the competent national organs, to determine and take into account the special relationship of the plaintiff indigenous community with such lands, at the moment of deciding among the two rights.  Otherwise, the right to restitution would lack meaning and would not afford a real possibility of recovering the traditional lands. Limiting in this way the effective realization of the right to property of the members of indigenous communities not only violates the State’s obligations under the provisions of the Convention related to the right to property, but also compromises the State’s responsibility in relation to the guarantee of an effective remedy and constitutes a discriminatory treatment that produces social exclusion.”[396]

141.          For the Inter-American Court an bilateral international investment treaty in force, which protects the private owners of the claimed lands, is also a legally insufficient reason to deny indigenous and tribal peoples’ right to territorial property and restitution, because the enforcement of bilateral commercial treaties “should always be compatible with the American Convention, which is a multilateral treaty on human rights that stands in a class of its own and that generates rights for individual human beings and does not depend entirely on reciprocity among States”.[397]  The application of these treaties must and may be made compatible with the American Convention, because they often contain clauses which allow for the expropriation of the investments made by nationals of one of the contracting parties for reasons of public purpose or interest, “which could justify land restitution to indigenous people.”[398]

Alternative lands

142.          Only  “when a State is unable, on objective and reasoned grounds, to adopt measures aimed at returning traditional lands and communal resources to indigenous populations, it must surrender alternative lands of equal extension and quality, which will be chosen by agreement with the members of the indigenous peoples, according to their own consultation and decision procedures.”[399]  This is a last resort alternative, that is, it only constitutes a legally acceptable hypothesis when all possible means to obtain the restitution of each people’s specific ancestral territory have been exhausted, and such restitution has not been possible because of objective and justified reasons, in the terms established by the Inter-American jurisprudence and described in the foregoing section on territorial restitution.

143.          In this regard, it is worthwhile recalling that according to the Inter-American Court, the State has the burden of proving, with sufficient arguments, that there exist objective motives which justify the lack of materialization of indigenous and tribal peoples’ right to property and territorial restitution;[400] that the fact that the claimed lands have been transferred from one owner to another for a long time and are duly registered as private property is not a sufficient motive to justify the lack of materialization of indigenous and tribal peoples’ right to property and territorial restitution, nor does it relieve the State of international responsibility for said lack of materialization;[401] and that the fact that the claimed lands are being duly exploited by their owners in a productive manner is not a sufficient motive either to justify the failure to restitute the ancestral territory.[402]

144.          The provision of different lands as a residual last measure has been confirmed by the Committee on the Elimination of Racial Discrimination, which has especially called upon States parties to the Convention, in its General Recommendation No. 23, “where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories.  Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.”[403]

145.          The Inter-American Court, in turn, has explained that if there is no restitution, the alternative lands to be provided must be “of sufficient extent and quality to conserve and develop their ways of life,”[404] meaning that they have “capacity for providing the resources which sustain life, and (…) the geographic space necessary for the cultural and social reproduction of the group”.[405]  In other words, it is not sufficient for there to be other properties available; in order to grant alternative lands, they must have, at least, certain minimum agro-ecological capacities, and be submitted to an assessment which determines their potential for development by the Community.[406]

146.          The Inter-American Court has also taken into consideration,[407] in this regard, Article 16.4 of ILO Convention No. 169, according to which “when such return is not possible, as determined by agreement or, in the absence of such agreement, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development.  Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees.”

147.          The remedy of alternative lands and/or an indemnity in cases where restitution is an  objective impossibility must secure the effective participation of the affected indigenous or tribal people.  According to the Inter-American Court, “selection and delivery of alternative lands, payment of fair compensation, or both, are not subject to purely discretionary criteria of the State, but rather, pursuant to a comprehensive interpretation of ILO Convention No. 169 and of the American Convention, there must be a consensus with the peoples involved, in accordance with their own mechanism of consultation, values, customs and customary law.”[408]

148.          The United Nations Declaration on the Rights of Indigenous Peoples also leaves this possibility expressly open.  As established in Article 28, “1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. // 2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.”

I.         Right to Basic Services and Development

149.          As explained by the IACHR, the process of guaranteeing land and resource rights for indigenous and tribal peoples is not finalized when the lands are demarcated and property title is granted; it must be accompanied by the installation of basic services and utilities for the communities, and assistance with development.[409]  “While the territory is fundamental for development of the indigenous populations in community, it must be accompanied by health, education, and sanitary services, and the protection of their labor and social security rights, and, especially, the protection of their habitat.”[410]  This obligation is also deduced from the right to live in conditions of dignity, protected by the American Declaration and the American Convention on Human Rights,[411] as well as from States’ general duty to guarantee the members of indigenous and tribal communities access to dignified living conditions in the fields of sanitation, food and housing, inter alia by virtue of the provisions of Article 26 of the American Convention on Human Rights, which binds them to adopt appropriate measures to achieve full realization of social  rights.[412]

J.         Exercise of the Spiritual Relation to Territory and Access to Sacred Sites

150.          Ancestral territories have a deep spiritual value for indigenous and tribal peoples.  In addition, indigenous and tribal peoples consider that certain places, phenomena or natural resources are especially sacred in accordance with their tradition, and require special protection.  Indigenous and tribal peoples’ territories and natural resources are a constitutive element of their worldview and religiousness,[413] given that for them, the notions of family and of religion are intimately connected to the places where ancestral burial grounds, places of religious significance and importance, and kinship patterns have developed from their occupation and use of their physical territories.[414]  

151.          Inter-American human rights instruments protect the right of the members of indigenous and tribal peoples to enjoy their particular spiritual relationship with the territory they have traditionally used and occupied.[415]  States have an obligation to protect that territory, and the relationship between indigenous or tribal peoples and their lands and natural resources, as a means to allow for the exercise of their spiritual life.[416] Consequently, limitations on the right to indigenous property can also affect the right to the exercise of one’s own religion, spirituality or beliefs, a right recognized by Article 12 of the American Convention and Article III of the American Declaration.  States are under the obligation to secure indigenous peoples’ freedom to preserve their own forms of religiousness or spirituality, including the public expression of this right and access to sacred sites whether or not on public or private property.

K.         Protection from Forced Displacement

152.          Indigenous peoples and their members have the right to be protected from forced displacement from their territories caused by violence. In case of being displaced by violence, they have the right to receive special attention by the State while they are displaced.  The forced displacement of indigenous or tribal villages, groups of families, communities or peoples from their lands due to armed violence, implies in many cases the loss of their socio-cultural integrity and their habitat.[417]  In the Inter-American Court’s words, “conforming to the constant jurisprudence on indigenous matters, through which the relationship of the indigenous groups with their territory has been recognized as crucial for their cultural structures and their ethnic and material survival,[418] the Tribunal considers that the forced displacement of the indigenous peoples out of their community (…) ‘can place them in a special situation of vulnerability, that for its destructive consequences regarding their ethnic and cultural fabric, generates a clear risk of extinction and cultural or physical rootlessness of the indigenous groups,’[419] for which it is indispensable that the States adopt specific measures of protection[420] considering the [particular traits] of the indigenous peoples, as well as their customary law, values, uses, and customs, in order to prevent and revert the effects of said situation.”[421]  This must be understood to be so regardless of the State responsibility to adopt all necessary measures to allow the return of indigenous peoples to their traditional territories securely and with dignity, which, in the case of forced displacements caused by contexts of violence, includes the State duty to adopt measures to overcome the impunity of actors responsible for such violence.[422]

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