62
Article 150. – As an outcome of the steps set forth in Article 148, the Executive, upon a
request by the Instituto de Bienestar Rural, may decree expropriation of the land based
on the constitutional determination included in this law.
78.
In the instant case there is a disagreement between the parties regarding the
date when the land claim procedure began. On the one hand, the Inter-American
Commission and the representatives argue that the procedure began on October 5,
1993, with the note addressed by Tomás Galeano, leader of the Community, to the
IBR, in which he stated the interest of the Yakye Axa Indigenous Community in
returning to their traditional territory and requested “legalization” of at least 15,000
hectares. On the other hand, the State argues that the steps that can be considered
valid to obtain communal land ownership are those subsequent to December 10,
2001, when the Yakye Axa Community attained recognition of its legal status.
79.
Article 62 of the Paraguayan Constitution establishes that
[t]his Constitution recognizes the existence of the indigenous peoples, defined as
cultural groups prior to the establishment and organization of the Paraguayan State.
80.
The pertinent provisions of Law No. 904/81, in turn, state that:
Article 7.- The State recognizes the legal existence of the indigenous communities, and
will grant them legal status in accordance with the provisions of this law.
Article 8.- The legal status of the indigenous communities that have existed since
before the enactment of this law and those constituted by indigenous families
regrouping in communities to obtain the benefits set forth in it will be recognized.
81.
Based on said Articles, obtaining legal status is indispensable for the transfer
of the land, but not to begin the land claim procedure.
82.
The Court deems that granting legal status makes operative the previously
existing rights of the indigenous communities, who have exercised them historically
and not since they acquired legal status. Their systems of political, social, economic,
cultural and religious organization, and the rights associated with them, such as
appointment of their own leaders and the right to claim their traditional lands, are
recognized not to the legal entity that must be registered to comply with a legal
formality, but to the Community itself, which the Paraguayan Constitution itself
recognizes existed before the State.
83.
For Paraguayan legislation, the indigenous Community has ceased to be a
factual reality to become an entity with full rights, not restricted to the rights of the
members as individuals, but rather encompassing those of the Community itself,
with its own singularity. Legal status, in turn, is a legal mechanism that grants them
the necessary status to enjoy certain basic rights, such as communal property, and
to demand their protection when they are abridged.
84.
Therefore, the Court finds that legal status, under Paraguayan domestic
legislation, is another right guaranteed to the Indigenous Community, as en entity
entitled to rights, and thus the date on which it is granted is irrelevant for
establishment of the beginning of the duration of the administrative land claim
procedure. For this reason, the Court will consider October 5, 1993 as the date
when said procedure began (supra para. 50.24).
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