including in secret; by official technical documents or documents prepared at the
request of the State, and by the historic occupation of that territory. It stressed that
the State's position “attempts to ignore that the indigenous peoples of the Chaco
comprise numerous communities, some with a multi-ethnic composition […], each one
with a specific and particular history that has created clear links to a specific part of
the Chaco territory.” Similarly, the Commission indicated that the Xákmok Kásek
Community, “throughout its history, developed a cultural affiliation with a certain
territory – that of Retiro Primero on the Salazar Ranch which it is claiming.”
92.
The representatives indicated that the Community “is only claiming the
restitution of a small part of its ancestral territory,” which is clearly defined and is
known and identified by the members of the Community as Mompey Sensap (today
Retiro Primero) and Makha Mompena (today Retiro Kuñataí). They emphasized that the
lands claimed have been identified in “the collective memory that is still alive in the
Community and its members, who clearly and systematically related and associate
events, places, memories and traditional economic practices with this geographic
area.”
93.
Regarding the traditional nature of the lands claimed, the Court will examine:
(a) the Community's movement and occupation of the land and its surrounding areas;
(b) the toponymy of the area; (c) the technical studies prepared on the matter, and
(d) the alleged suitability of the land being claimed.
a)
Movement and occupation of the traditional territory
94.
The Court finds that the original nomadic character of the peoples to which this
Community belongs has been proved, and also the fact that its traditional territory
covers a larger area than the one claimed (supra paras. 56 and 65); neither of these
points has been disputed by the parties. However, expert witness Braticevic explained
that the nomadic nature of the peoples of the area implied that they roamed their
territory in a radial or circular manner, following an annual cycle or period.104 Expert
witness Braunstein gave a similar opinion.105
95.
The places indicated by the members of the Community as villages, hunting and
fishing grounds, burial grounds, sources of medicinal plants, and relevant sites in their
history follow this pattern of movement and adaptation that these expert witnesses
explained to this Court.106 Consequently, and based on the scientific criteria presented,
the specific traditional territory of the Xákmok Kásek Community can be determined.
Even though the Court does not know the precise extension of this territory, since it
was not proved in the case file, the Court observes that it coincides with the territory
that has always been indicated by the members of the Community as its traditional
territory; namely, the Salazar Ranch and its surroundings, and it is less than the
175,000 hectares of ancestral territory corresponding to the ethnic peoples to which
the Community belongs.107 It is worth underlining that, for the purpose of the
protection of the right to communal property of the members of the Community, the
104
Expert testimony of Sergio Iván Braticevic, supra note 17, folio 4244.
105
Expert testimony of José Alberto Braunstein, supra note 22, folios 276 to 277.
106
Cf. Map entitled Topónimos y Puntos Geográficos conforme la declaración de Tomás González
Dermott de Xákmok Kásek [Place Names and Geographical Sites according to the testimony of Tomás
González Dermott of Xákmok Kásek] (merits file, tome II, folio 602), and Map entitled Territorio Tradicional
de la Comunidad Xákmok Kásek y Tierras Reivindicadas [Traditional Lands of the Xákmok Kásek Community
and Lands Claimed], supra note 88, folio 2712.
107
Cf. CEADUC Report, supra note 55, folio 735 and 741.
23