67.
In the same sense, the Inter-American Court has noted that "Among indigenous peoples
there is a communitarian tradition regarding a communal form of collective property of the land, in the sense
that ownership of the land is not centered on an individual but rather on the group and its community" 70. In
addition to this collective conception of property, indigenous peoples have a special, unique and
internationally protected relationship with their ancestral lands, which is absent in the case of nonindigenous. This special and unique relationship between indigenous people and their traditional territories
has international legal protection. As stated by the IACHR and the Inter-American Court, the preservation of
the particular connection between the indigenous communities and their lands and resources is linked to the
very existence of these peoples, and therefore "deserves special protection measures" 71. The property rights
of indigenous and tribal peoples protect this close link they have with their territories and natural resources
associated with their culture found there72.
68.
Furthermore, the Inter-American Court has stated the following regarding the property
rights of indigenous people:
Applying the aforementioned criteria, the Court has considered that the close ties the
members of indigenous communities have with their traditional lands and the natural
resources associated with their culture thereof, as well as the incorporeal elements deriving
therefrom, must be secured under Article 21 of the American Convention.186 The culture of
the members of indigenous communities reflects a particular way of life, of being, seeing and
acting in the world, the starting point of which is their close relation with their traditional
lands and natural resources, not only because they are their main means of survival, but also
because the form part of their worldview, of their religiousness, and consequently, of their
cultural identity.73
69.
In sum, under the Inter-American instruments on human rights, the indigenous and tribal
people have the right to recognition and protection of "their specific versions of the right to use and
enjoyment of property, arising from the culture, customs and beliefs of each people". 74 There is not one way
Judgment of August 31, 2001. Series C No. 79, para. 140 (a); and IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of
the Toledo District (Belize), October 12, 2004, par. 115.
69 Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Merits, Reparations and
Costs. Judgment of August 31, 2001. Series C No. 79, para. 151; Sawhoyamaxa Indigenous Community vs. Paraguay. Merits, Reparations
and Costs. Judgment of March 29, 2006. Series C No. 146, para. 128; and Case of the Indigenous Community Xákmok Kásek. Vs. Paraguay.
Merits, Reparations and Costs. Judgment of August 24, 2010, Series C No. 214, par. 109.
70 Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua. Judgment of August 31,
2001. Series C No. 79 par. 149. Case of the Indigenous Community Yakye Axa v Paraguay. Reparations and Costs Fund. Judgment June 17,
2005. Series C No. 125, par. 131; Sawhoyamaxa Indigenous Community vs. Paraguay. Merits, Reparations and Costs. Judgment of March
29, 2006. Series C No. 146. para. 118; Indigenous Community Case Xákmok Kásek. Vs. Paraguay. Merits, Reparations and Costs. Judgment
of August 24, 2010 Series C No. 214, paras. 85-87; Case of the Saramaka People. Vs. Suriname. Preliminary Objections, Merits,
Reparations and Costs. Judgment of November 28, 2007. Series C No. 172, par. 85; If Kichwa Indigenous People of Sarayaku Vs Ecuador.
Merits and reparations. Judgment of June 27, 2012. Series C No. 245, par. 145.
71 IACHR. Report Rights of Indigenous and Tribal Peoples over their Ancestral Lands and Natural Resources. 2009. Para. 55. Available at:
http://www.oas.org/es/cidh/indigenas/docs/pdf/Tierras-Ancestrales.ESP.pdf; IACHR, Report No. 75/02, Case 11.140, Mary and Carrie
Dann (USA), December 27, 2002, par. 128; Court HR Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua. Judgment of
August 31, 2001. Series C No. 79 para. 149. See also Inter-American Court of Human Rights, Case Sawhoyamaxa Indigenous Community v
Paraguay. Merits, Reparations and Costs. Judgment of March 29, 2006. Series C No. 146, par. 222.
72 IACHR. FOLLOW-UP REPORT - ACCESS TO JUSTICE AND SOCIAL INCLUSION: THE ROAD TOWARDS STRENGTHENING DEMOCRACY IN
BOLIVIA, OAS / Ser / L / V / II.135, Doc 40, August 7, 2009, par.. 156. Court HR. Case of the Mayagna (Sumo) Awas Tingni Community v
Nicaragua. Merits, Reparations and Costs. Judgment of August 31, 2001. Series C No. 79, par. 148. Court HR. Caso Yakye Axa Indigenous
Community vs. Paraguay. Merits, Reparations and Costs. Judgment June 17, 2005. Series C No. 125, par. 137. Court HR. Sawhoyamaxa
Indigenous Community vs. Paraguay. Merits, Reparations and Costs. Judgment of March 29, 2006. Series C No. 146, par. 118, 121.
73 Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua. Judgment of August 31,
2001. Series C No. 79 par. 149. Case of the Indigenous Community Yakye Axa v Paraguay. Reparations and Costs Fund. Judgment June 17,
2005. Series C No. 125, par. 137; Sawhoyamaxa Indigenous Community vs. Paraguay. Merits, Reparations and Costs. Judgment of March
29, 2006. Series C No. 146. par. 118.
74 IA Court, Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgement of March 29,
2006. Series C No. 146. Par. 120.
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