79
151. Selection and delivery of alternative lands, payment of fair compensation, or
both, are not subject to purely discretionary criteria of the State, but rather,
pursuant to a comprehensive interpretation of ILO Convention No. 169 and of the
American Convention, there must be a consensus with the peoples involved, in
accordance with their own mechanism of consultation, values, customs and
customary law.
152. In the instant case, there has been no agreement between the members of
the Community and the State regarding the latter’s offer of alternative lands. At the
public hearing held by this Court, witness Esteban López stated that
[u]nfortunately for the Government I think that they have not worked as they should,
legally, let us say, the Government of Paraguay can do what it wants, not consulting the
indigenous peoples, we can clarify, because if Congress is interested in solving the
problem, why do they not go to the Community, meet with the people, ask about this
offer, explain that they have a place [...] seek a solution, you can agree, or disagree,
but we received the notification without consultation, they sought to do this rapidly and
then seeing the owners with a piece of paper in their hand, all night going around my
house, […] we must know, we must understand, that this is a violation, […] if it had
been the will of the State to find a way out, well, we would meet other times, reach an
agreement, all of us sign, no problem, you cannot play with the indigenous community
members [...].
We know the laws, for a good solution you have to consult with the indigenous peoples,
the States, if there is an agreement with the Community I think the problem would be
solved, but it is up to the groups, the members of the Community, but they should meet
with the State, I don’t know, every week, because as I was saying, I am expressing our
struggle that we already stated is a sacred struggle, we have gone through difficult
times and the struggle can’t be sold just like that in a day or eight days, there has to be
a dialog, it would take a long time.
153. It is necessary to recall that, based on Article 1(1) of the Convention, the
State is under the obligation to respect the rights recognized in the Convention and
to organize public authority to ensure free and full enjoyment of human rights by the
persons under its jurisdiction.199
154. To guarantee the right of indigenous peoples to communal property, it is
necessary to take into account that the land is closely linked to their oral expressions
and traditions, their customs and languages, their arts and rituals, their knowledge
and practices in connection with nature, culinary art, customary law, dress,
philosophy, and values. In connection with their milieu, their integration with nature
and their history, the members of the indigenous communities transmit this nonmaterial cultural heritage from one generation to the next, and it is constantly
recreated by the members of the indigenous groups and communities.
155. While Paraguay recognizes the right to communal property in its own legal
order, it has not taken the necessary domestic legal steps to ensure effective use
and enjoyment by the members of the Yakye Axa Community of their traditional
lands, and this has threatened the free development and transmission of their
traditional practices and culture, in the terms set forth in the previous paragraph.
199
See Case of Juan Humberto Sánchez, supra note 187, para. 142; Case of Ivcher Bronstein, supra
note 176, para. 168, and Case of the Constitutional Court. Judgment of January 31, 2001. Series C No.
71, para. 109.
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