76
because there were many ‘shamans’ amongst us, that is why we need, we require our
territory […] to continue practicing our culture.
135. The culture of the members of the indigenous communities directly relates to
a specific way of being, seeing, and acting in the world, developed on the basis of
their close relationship with their traditional territories and the resources therein, not
only because they are their main means of subsistence, but also because they are
part of their worldview, their religiosity, and therefore, of their cultural identity.
136. The above relates to the provision set forth in Article 13 of ILO Convention
No. 169, that the States must respect “the special importance for the cultures and
spiritual values of the peoples concerned of their relationship with the lands or
territories, or both as applicable, which they occupy or otherwise use, and in
particular the collective aspects of this relationship.
137. Therefore, the close ties of indigenous peoples with their traditional territories
and the natural resources therein associated with their culture, as well as the
components derived from them, must be safeguarded by Article 21 of the American
Convention.
In this regard, the Court has previously asserted that the term
“property” used in said Article 21 includes “those material things which can be
possessed, as well as any right which may be part of a person’s patrimony; that
concept includes all movables and immovables, corporeal and incorporeal elements
and any other intangible object capable of having value”197.
138. The Paraguayan Constitution recognizes the cultural identity of the indigenous
peoples and links it with their respective habitats, granting them, also, a number of
specific rights, which provide a basis for this Court to define the scope of Article 21 of
the Convention, as it has done in the previous paragraphs. The Constitution states:
Article 62 – REGARDING INDIGENOUS PEOPLES AND ETHNIC GROUPS
This Constitution recognizes the existence of the indigenous peoples, defined as cultural
groups prior to the establishment and organization of the Paraguayan State.
Article 63 – REGARDING ETHNIC IDENTITY
The right of indigenous peoples to preserve and develop their ethnic identity in the
respective habitat is recognized and guaranteed. They likewise have the right to freely
apply their systems of political, social, economic, cultural, and religious organization, as
well as to voluntarily submit to their customary rules regarding life within them, insofar
as they are not contrary to the basic rights set forth in this Constitution. In cases of
conflicting jurisdiction, indigenous customary law will be taken into account.
Article 64 – REGARDING COMMUNAL PROPERTY
Indigenous peoples have the right to communal landholding, with an area and quality
sufficient for conservation and development of their specific form of life. The State will
provide these lands free of cost, and they will be unencumberable, nonextinguishable,
not subject to guaranteeing contractual obligations or to rental; they will also be taxfree.
Removal or transfer from their habitat without their explicit consent is forbidden.
Article 65 – REGARDING THE RIGHT TO PARTICIPATE
197
See Case of the Mayagna (Sumo) Awas Tingni Community, supra note 176, para. 144, and Case
of Ivcher Bronstein, supra note 176, para. 122.
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