Indigenous Community Members of the Lhaka Honhat (Our Land) Association vs. Argentina
The Inter-American Court of Human Rights held that Argentina violated its obligations under Article 1.1 of the American Convention on Human Rights and related Articles 2, 8.1, 21, 23.1, 25.1, and 26, by denying the Indigenous communities their right to communal property, a healthy environment, adequate food, water, cultural identity, and judicial protection within a reasonable time. The ruling marked the first time the Court found violations of Article 26 of the Convention regarding the rights to a healthy environment, adequate food, water, and cultural identity.
The communities, united under the association Lhaka Honhat (“our land”), contain over 10,000, and began their struggle for their ancestral lands in 1984. The international case was litigated by member Centro de Estudios Legales y Sociales for over 20 years.
Indigenous community members from the Lhaka Honhat Association sued Argentina on behalf of 132 Indigenous communities belonging to the Wichí (Mataco), Iyjwaja (Chorote), Komlek (Toba), Niwackle (Chulupí), and Tapy'y (Tapiete) peoples who live on lots with the cadastral registrations 175 and 5557 in the Province of Salta (previously known as and referred to in the case as lots 14 and 55). The Indigenous communities sued Argentina for violating their right to communal property by failing to provide legal security to their territory and allowing Creole settlers to reside on their lands; they also sued to protect their rights to a healthy environment, adequate food, participation in cultural life, and judicial protection.
After residing on the land for centuries the Indigenous claims to the land were first formalized in 1991 through Decree No. 2609/91, which required Salta to unify the lots and allocate a part of the property to them as communal property (title as a single deed of communal ownership as opposed to individual deeds). In 1992, Lhaka Honhat formed to obtain the title they still had not received. In 1993, the State created an Advisory Commission, and in 1995 they recommended assigning two thirds of the land of the lots to the Indigenous communities, which they accepted. However, in 1995, without consulting the Indigenous communities, the State built an international bridge on the Indigenous peoples’ land. In 1999, Salta, through Decree 461 made allotments of parts of lot 55 to a few individual Indigenous communities settled there. In 2000, the Province presented a proposal for awarding lot 55, but the Lhaka Honhat rejected the offer because it did not include lot 14, and it did not include communal title. In response to an amparo action filed by Lhaka Honhat in 1999 against Decree 461, the Court of Salta in 2007 annulled Decree 461 because the Indigenous peoples did not have an adequate opportunity to make their opinions known. Lhaka Honhat then reduced their claim from 643,000 ha to 400,000 and give 243,000 ha to the Creole families of lots 14 and 55, and Salta adopted Decree 2786/07 to endorse the revised claim. Following the Decree, a Salta team held meetings aimed at reaching agreements between the Creole and Indigenous communities. In 2012, Salta issued Decree 2398/12 to assign 243,000 ha of lots 14 and 55 to Creole communities and 400,000 ha for Indigenous communities. Then in 2014, through Decree 1498/14, Salta transferred the property as a shared property between 71 Indigenous communities and the Creole families. To date, the State has not provided a communal title for all of the communities that form Lhaka Honhat, which now are 132. In the meantime, Creole settlers’ activities, such as illegal logging, raising livestock, and fencing installations, have taken place on the Indigenous communities’ lands. These activities have led to loss of forest resources and biodiversity and have grossly impacted the traditional ways in which Indigenous communities access food and water.
The Court looked at (1) the right to community property, (2) the rights to a healthy environment, adequate food, water, and cultural identity, and (3) the right to judicial guarantees.
The Court stated that Article 21 of the American Convention includes Indigenous peoples’ right to their communal property. The State must give legal certainty to this by providing a legal title that the Indigenous communities can enforce against the government and third parties. Though Decrees 2786/07 and 1498/14 constituted acts of recognition of communal ownership, due to inadequate title, the process to finalize the ownership was incomplete. The Court stated that Argentina’s current regulations to guarantee the community property right are inadequate and therefore they violated Article 21 of the Convention and related Articles 1.1, 2, 8, and 25. The Court also noted that, despite the relevance and importance of the international bridge that Argentina built, the State had violated the property rights by not consulting the Indigenous communities and therefore breaching Articles 21 and 23 of the Convention.
For the first time, the Court analyzed the rights to a healthy environment, adequate food, water, and cultural identity under Article 26 of the Convention. The Court found that activities like illegal logging carried out by the Creole settlers detrimentally affected the Indigenous communities’ way of life and access to water, food, and a healthy environment. The detrimental effect on the communities’ traditional diet and lifestyle impacted the cultural way of life and the Indigenous communities’ cultural identities. The State was aware of these harmful activities and their impact on Indigenous way of life and did not effectively stop them. Because the detrimental activities were not consensual, as the Indigenous communities did not permit them, Argentina failed to guarantee the Indigenous communities the right to determine activities done on their property and violated Article 26 and 1.1 in connection with the rights to a healthy environment, adequate food, water, and cultural identity.
Regarding the right to judicial guarantees, the Court found that Argentina violated Article 8.1 and 1.1 by not providing judicial guarantees to the Indigenous communities. Specifically, the Argentine Supreme Court ordered the Court of Salta to issue a decision regarding Decree 461/99 in 2004, but the Salta Court did not issue a decision for another three years and provided no justification for the delay.
The Inter-American Court ordered Argentina, within the next six years at most, to complete all necessary actions to grant title to the 132 Indigenous communities and resettle the Creole populations, along with their fences and livestock, away from the Indigenous lands. Furthermore, the Court ordered that the State (1) refrain from doing anything on Indigenous property that might affect the property’s value or use without prior consultation; (2) submit a study to the Court identifying critical instances of lack of access to drinking water or food, and create an action plan to address the situations and start implementation; (3) prepare, within a year, a study on actions to take for water conservation and to remedy contamination, and to avoid loss of forest resources and recover lost food sources; (4) create a fund for community development and implement its execution within four years; (5) within six months, publicize the Court’s decision and summary including its translation in Indigenous languages; (6) adopt legislative measures or take other actions to ensure legal certainty to the rights of Indigenous communal property; and (7) pay a sum for reimbursement of expenses and costs.
Eight members—the Asociación Civil por la Igualdad y la Justicia, Amnesty International, Asociación Interamericana para la Defensa del Ambiente, Comisión Colombiana de Juristas, Dejusticia, FIAN International, International Women’s Rights Action Watch - Asia Pacific, and Minority Rights Group International—filed an amicus to the Court discussing the derivation, adjudication, and content of the rights to a healthy environment, adequate food, water, and cultural identity. Member Due Process of Law Foundation (DPLF) also presented, along with several allies, an amicus concerning “international standards and comparative jurisprudence on the demarcation of indigenous territories and economic, social, cultural and environmental rights.”
In the judgment, the Inter-American Court ordered Argentina to (8) submit semi-annual reports on the restitution measures for the property right; and (9) inform the Court, within a year, about measures adopted to comply with the ruling.
This case both expands and clarifies State obligations under Article 26 of the American Convention on Human Rights to protect Indigenous Peoples’ rights and emphasizes that States must take measures to protect against infringements of Indigenous rights by non-Indigenous settlers. By ordering the resettlement of the Creole populations, the Court laid out the importance of Indigenous lands to their cultural survival, leading the way to address other non-Indigenous populations currently detrimentally affecting and residing on Indigenous lands.
For their contributions to the summary, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.