A/HRC/21/47/Add.2
other, legitimate communities, which in some cases are still waiting to be granted legal
status and have their lands recognized.
3.
Other problems undermining the land tenure of indigenous peoples
49.
There are also concerns about the effects of establishing national parks and protected
areas in places inhabited or used by indigenous peoples. In 2005, the National Parks
Administration and INAI signed an agreement to assist the indigenous communities located
in protected areas. The Special Rapporteur received information about positive
developments in recent years, including indigenous peoples’ increased control over the
management of some national parks. However, indigenous peoples face continuous
challenges regarding access to land and natural resources within protected areas.
50.
Another problem is the listing of lands occupied by indigenous peoples, such as the
Quebrada de Humahuaca in the province of Jujuy, as United Nations Educational,
Scientific and Cultural Organization (UNESCO) world heritage sites. After this site was
listed by UNESCO in 2003, there was a huge increase in tourism and in the economic value
of the land used and occupied by indigenous peoples in the area. Because of this, the
provincial government has issued land titles to foreign investors, and as a result, according
to the information received, the surrounding indigenous communities have been
dispossessed of their land and have fewer water resources. The communities are not
involved in the supervision or management of the site and derive no economic benefits
therefrom. Moreover, the provincial government has reportedly still not surveyed the
territories of the indigenous communities in the Quebrada de Humahuaca.
B.
Access to justice, evictions and social protest
51.
Several communities have turned to the justice system in an attempt to obtain
protection or legal recognition of their lands, with mixed results. Indigenous peoples
seeking justice generally face a number of barriers, including linguistic, cultural and
economic barriers and the distance to the courts. In particular, it has been reported that most
provincial courts are unaware of, or fail to take due consideration of, national and
international law concerning indigenous peoples, mainly with regard to their rights to land
and natural resources.
52.
Throughout the country, the courts have tended to favour the private property rights
of individuals or corporations over collective forms of indigenous ownership. Few court
rulings have protected the rights of indigenous peoples. One positive judgement was issued
in February 2011 in the case involving the Wenctru Trawel Leufú community of Neuquén
province. This judgement recognized the obligation of the Piedra del Águila company to
consult with the affected community before proceeding with extractive activities. It has
been appealed, however, by the company and the provincial State prosecutor.
53.
The grave situation of legal uncertainty over indigenous lands is reflected in the high
number of indigenous communities that have been evicted. The majority of these evictions
have resulted from orders issued by provincial courts in which members of indigenous
peoples have been accused of seizing private land. In some cases, the affected communities
were not notified beforehand, and the communities had no opportunity to defend
themselves during the eviction proceedings. In some cases, the homes and property of
members of indigenous peoples, including their livestock and crops, were destroyed during
the eviction operation.
54.
It is worrying that most of these evictions have occurred since Act No. 26160 of
2006 entered into force. It has been reported that the courts do not give proper
consideration to, or are even completely unaware of, the rights of indigenous peoples under
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