4
actions […] that would reveal good faith, and constant and systematic actions to
respond to the original claim but, unfortunately, this has not happened. In this
regard, […] they have demanded […] that the State adopt the necessary measures,
so that, in compliance with the Court’s rulings, pertinent measures are taken and the
lands that are the subject of claim are returned.”
11.
That the Commission indicated that the granting of the land would resolve the
“extremely serious” situation of the members of the Community.
12.
That, even though the time granted to the State to hand over the traditional
lands to the members of the Community has not yet expired, the Court notes with
concern that there has been no progress on this point. Consequently, the State must
be required to adopt all necessary measure to comply with this obligation within the
allotted time, bearing in mind that compliance with this aspect is fundamental in the
instant case, because a series of consequences relating to other types of rights
derive from compliance or non-compliance with this obligation.
13.
That, regarding the proposal to identify alternative lands for the Community,
the Court recalls that, in its Judgment, it indicated that:
212.
[…] If restitution of ancestral lands to the members of the Sawhoyamaxa
Community is not possible on objective and sufficient grounds, the State shall make over
alternative lands, selected upon agreement with the aforementioned Indigenous Community,
in accordance with the community's own decision-making and consultation procedures,
values, practices and customs. […]
214.
[…] the fact that the Community’s traditional lands is currently privately held or
reasonably exploited, is not in itself an “objective and sufficient ground” barring restitution
thereof.
*
*
*
14.
That, regarding the community development fund and the committee that will
implement the development projects (seventh operative paragraph of the
Judgment), the Court ordered that the State must “forward to adopted by the
committee at each session.”6
15.
That the State indicated that “Resolution No. 660/06 of the Ministry of
Finance was forwarded […] so that the inclusion [of the fund] in the INDI budget
could be observed,” and that Augusto Fogel formed part of the implementation
committee in representation of the State.
16.
That the representatives indicated that, even though the committee had been
constituted formally, it “had not held any meetings to discuss the projects that
should be implemented. The representative of the State had affirmed that this
aspect was conditional on obtaining land. [… T]he money for the fund has not been
deposited.”
17.
That, as indicated by the parties, the State has not complied with this aspect
of the Judgment.
*
6
Cf. Sawhoyamaxa Indigenous Community v. Paraguay. Compliance with judgment, supra note 5,
fourth operative paragraph.