87.
Moreover, the Court has indicated that the concepts of property and possession
in indigenous communities can have a collective meaning, in the sense that possession
is “not focused on individuals, but on the group and its community.”102 This concept of
the ownership and possession of land does not necessarily correspond to the classic
concept of property, but it deserves equal protection under Article 21 of the
Convention. Failing to recognize the specific versions of the right to use and enjoyment
of property that emanate from the culture, practices, customs and beliefs of each
people would be equivalent to maintaining that there is only one way of using and
enjoying property and this, in turn, would make the protection granted by Article 21 of
the Convention meaningless for millions of individuals.103
88.
In the instant case, the fact that Paraguayan law recognizes the existence of
the indigenous peoples as groups that pre-date the formation of the State is not in
dispute, or that it recognizes the cultural identity of these peoples, their relationship
with their respective habitat, and the communal characteristics of their ownership of
their land, while also granting them a series of specific rights that serve as a basis for
this Court to define the scope and content of Article 21 of the Convention.
89.
The State does not deny that the members of the Xákmok Kásek community
have a right to the communal ownership of their traditional land, or that hunting,
fishing and gathering are essential elements of their culture. In the instant case, the
dispute centers on the need to restore the specific land claimed by the members of the
Community and to ensure the effective exercise of the right to property, both
questions that the Court will examine below.
2.1.
Matters relating to the lands claimed
2.1.1. Traditional nature of the lands claimed
90.
The Court observes that, despite indicating that it “does not deny its obligation
to restore these peoples' rights,” the State questions the ancestral nature of the lands
claimed by the Community. Paraguay argued that the victims’ ancestors “inhabited a
more extensive territory than the one claimed in this application, within which it
roamed and remained in a constant state of internal migration.” It affirmed that “the
Xákmok Kásek community was spread throughout its vast ancestral territory, and had
settled in the area of the Salazar Ranch by choice,” and that “[t]he truth is that the
ranches that are now being claimed as the settlement of their ancestors were never
the definitive settlement of the Community.” According to the State, since they were
“nomadic peoples, at some point they passed by those lands by chance, but that does
not empower them to claim ranchland that is being profitably exploited as their own.”
91.
The Commission indicated that “while the Xákmok Kásek Community refers to
its ancestral communal territory and claims it specifically, the State refers to the
ancestral territory of the Enxet-Lengua as a whole and, on that basis, affirms that it
can grant an alternate piece of land within this extensive ethnic territory.” It explained
that the 10,700 hectares claimed by the Community correspond to its “specific
ancestral territory,” which is revealed by the Community's own criteria, the toponymy
of the territory, and the development of traditional cultural practices on the territory,
Community v. Paraguay, supra note 20, para. 118, and Case of the Saramaka People v. Suriname, supra
note 16, para. 90.
102
Cf. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra note 101, para. 149;
Case of the Sawhoyamaxa Indigenous Community v. Paraguay, supra note 20, para. 120, and Case of the
Saramaka People v. Suriname, supra note 16, para. 89.
103
Case of the Sawhoyamaxa Indigenous Community v. Paraguay, supra note 20, para. 120.
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