53
the respective remedies in accordance with the applicable Paraguayan laws
regarding indigenous peoples’ claims to their traditional lands;
d) the argument made by the State in the sense that the Yakye Axa
Indigenous Community exists since the Executive granted it legal status is
contrary to Paraguayan domestic legislation, which acknowledges the
existence of indigenous peoples prior to establishment of the State itself.
Recognition of legal status is merely a way to effect the transfer of lands
claimed by specific indigenous communities;
e) the administrative remedy foreseen to solve the land claim by the Yakye
Axa Indigenous Community, in accordance with the procedure set forth in
Law No. 904/81, has not been effective to attain a definitive solution to the
Community’s land claim. Likewise, the steps taken by the Community in
2000 and by the Executive itself in 2002 before the Paraguayan Legislative,
by submitting bills for expropriation of the area claimed, have not been
effective either;
f) Paraguayan legislation does not include an effective legal remedy to
protect the legitimate territorial claims of the indigenous peoples of Paraguay.
If steps taken before the Executive (territorial claim) or before the Legislative
(expropriation) are not effective, those affected, in this case the Yakye Axa
Community and its members, have no effective legal remedy to exercise their
rights, and
g) Ineffectiveness of those procedures has meant, specifically, that the State
has not ensured the right of the Yakye Axa Community to ownership of its
ancestral territory.
Pleadings of the representatives
53.
With regard to Articles 8 and 25 of the Convention, the representatives
alleged that:
a) In the domestic proceeding to recover ancestral territory, begun by the
Yakye Axa Community before the Paraguayan authorities, the principle of a
reasonable term, embodied in Article 8(1) of the Convention, was not
respected. Registration of the leaders of the Yakye Axa Community took
three years, while the term allowed for this registration, pursuant to the
provisions of Article 12 of Law No. 904/81, is 30 days. Complexity was, in
this case, minimal, and the legal representatives of the Community attached
to the registration request the documents required by domestic legislation.
Recognition of the legal status the Yakye Axa Community also took three
years to become effective. The Community made the request before the INDI
on May 21, 1998, but legal status was only granted on December 10, 2001.
This act of recognition of legal status is only a requirement to make the title
to ancestral land that belongs to the indigenous communities effective, and it
is not a requirement to declare the existence of the communities or to begin
the procedure to claim their ancestral lands;
b) the request to recover ancestral territory was submitted by the
Community on October 13, 1993 and to date, almost twelve years after it was
submitted, the State has not given a definitive answer to the Community’s
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