IACHR Files Application Before Inter-American Court of Human Rights in Case Concerning Ecuador Over Violations of the Salango Indigenous Community's Right to Property

October 30, 2023

Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) filed on July 7, 2023, an application before the Inter-American Court of Human Rights (I/A Court H.R.) in Case 13,198, with regard to Ecuador. This case concerns the failure to protect the Salango indigenous community's ancestral property in the context of the sale of land to a foreign businessman.

The Salango community is an indigenous group that descends from the Manta Wankavilka people in the south of the Manabí province. This community formally became a commune in 1979, for lack of a legal framework that might recognize its indigenous identity. In 1991, the State legally recognized members of the Salango community as the lawful owners of 2,536 hectares of ancestral land.

In 2000, an Extraordinary General Assembly of the Salango commune with less than 50% of community members in attendance decided to sell a portion of the community's land to a Swiss businessman. In 2001, community authorities formally requested permission from the Ministry of Agriculture to sell that communal land. The ministry opted to ask the Peruvian State's Attorney General whether constitutional rules concerning the protection of indigenous peoples might be applicable to the Salango commune. In August 2001, the Peruvian State's Attorney General replied that those rules did not apply to the Salango commune, because it did not qualify as an indigenous people, but rather as a Montuvio (peasant) community.

In September 2001, the head of the community's authorities requested from the Ministry of Agriculture permission to sell a further plot of land and noted the sale of the previous plot. The request was met with a silence procedure and, in December 2001, Public Notary 36 in the Quito canton formalized the sale of the land. On May 3, 2002, a public deed was registered to sell the land to the firm Tocuyo S.A. After the sale was formalized, internal paths on that land were turned into private routes by the firm's legal representative.

Members of the community who had disagreed with the sale of land filed for judicial protection, arguing that the sale had violated their rights to communal property, employment, habitat, and development as an indigenous people. However, their request for judicial protection was rejected.

In its Admissibility and Merits Report, the IACHR found that the lack of adequate legislation and the mistake that was made in identifying Salango as a commune rather than as an indigenous people—as well as the automatic application of a silence procedure—had violated the community's rights to juridical personality and to property.

The Commission said that registering land in favor of a third party had led to a privatization of ancestral paths granting the community access to the sea, which affected Salango's cultural rights and even the community's ability to survive. The Commission also found that Salango's right to judicial protection had been violated, since State authorities had described the complaints that had been filed simply as matters of "pure legality" and applied silence procedures to applications concerning the community's land without checking whether the decision to sell that land had been made in accordance with Salango's traditional decision-making mechanisms.

The Commission concluded that the failure to protect community land had violated the American Convention and amounted to an unfair and unreasonable application of the normative framework that was in force, noting that the community should have been protected using the rules that applied to indigenous peoples.

The Commission found that the State was responsible for violations of the rights held in Articles 3 (juridical personality), 8.1 (fair trial), 21 (collective property), 24 (equal protection), 25 (judicial protection), and 26 (progressive development) of the American Convention to the detriment of the Salango community, in keeping with the obligations held in Article 1.1 of the same instrument.

The Commission therefore recommended that the State provide comprehensive reparations for all human rights violations, by adopting the following measures in particular:

1. Take action to return the land to the Salango community; identify the traditional land affected by the sale and, if it remains in private hands, provide compensation for any improvements that might have been made to it (should it not be possible to return the land, the State should offer alternative land or financial compensation in agreement with the community and in keeping with Salango's customs and its right to consultation)
2. Provide material compensation to the Salango community for failing to ensure judicial protection of its territory, including any impact on its traditional cultural and economic activities
3. Ensure that the Salango community has access to Playa Dorada and ensure the community's participation and consultation regarding all conservation activities in that area that might affect Salango's traditional land, making sure that all environmental protection measures remain compatible with indigenous rights and enabling the community to conduct its economic and cultural activities
4. Adopt non-recurrence measures including training programs for judges and notaries public concerning the rights to collective property, consultation and consent, and self-determination of indigenous peoples and the right of these peoples to have their ancestral property protected from unlawful sales and to have their land protected from fractionation

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 254/23

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