54
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goods resulting from each people’s culture, habits, customs and beliefs.” There is not just one way to
use and enjoy protected goods; both ownership of and the ways in which territories are possessed by
indigenous and tribal peoples may differ from a non-indigenous notion of ownership, but they are
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protected by the right to property. . The unique relationship between the indigenous and their traditional
territory “may include the traditional use or presence, be it through spiritual or ceremonial ties; settlements
or sporadic cultivation; seasonal or nomadic gathering, hunting and fishing; the use of natural resources
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associated with their customs and any other element characterizing their culture.“
Each of these
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modalities is protected by Article 21 of the Convention.
208.
Since it constitutes a prerequisite for the development of indigenous peoples’ own forms
of subsistence, the granting of a suitable and culturally appropriate territorial title deed enables those
peoples and their members to access food, water, and their traditional health and healing systems. The
IACHR has explained that “the continued utilization of traditional collective systems for the control and
use of territory are in many instances essential to the individual and collective well-being, and indeed the
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survival of indigenous peoples,” and have to do with the “capacity for providing the resources which
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sustain life” for the people concerned, as well as the “geographic space necessary for the cultural and
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social reproduction of the group.”
It is equally important that the territory granted to the indigenous
peoples be sufficiently large and in one place, that is to say, it should not be fragmented, in order for
those peoples to enjoy the full exercise of their ancestral ways of life.
209.
In the instant case, as is considered proven, the Community has ancestrally possessed
the territory it occupies, and has kept its own forms of social and cultural organization, preserving its
traditions, way of life, and relationship to the land. It has also been ascertained that, starting in 1946, the
Community embarked on the process of achieving recognition of its rights to the lands it has historically
occupied.
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I/A Court H.R. Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.
Judgment of March 29, 2006. Series C No. 146, paragraph 120.
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I/A Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of
March 29, 2006. Series C No. 146, paragraph 120.
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I/A Court H.R. Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.
Judgment of March 29, 2006. Series C No. 146, paragraph 131.
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See inter alia IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002,
paragraph 130; IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12,
2004, paragraph 151. I/A Court H.R. Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and
Costs. Judgment of March 29, 2006. Series C No. 146, paragraph 120. This interpretation is backed by other international
instruments illustrating international attitudes to the part played by traditional land tenure systems in modern human rights protection
systems; see, for instance, Article 14.1 of ILO Convention No. 169 and Article 27 of the International Covenant on Civil and Political
Rights ratified by Honduras on August 25, 1997. On this, the human rights committee has explained that “culture manifests itself in
many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous
peoples” [Human Rights Committee, General Comment No. 23: Rights of Minorities (Article 27 of the International Covenant on Civil
and Political Rights), 08/04/94, Doc. United Nations CCPR/C/21/Rev. 1/Add.5, paragraph 7; cited in IACHR, Report No. 75/02, Case
11.140, Mary and Carrie Dann (United States), December 27, 2002, paragraph 130, footnote No. 97]. For that reason, protection of
the cultural rights of an indigenous people may include protection of the way it relates to the territory through traditional activities
such as fishing and hunting [Human Rights Committee, General Comment No. 23: Rights of Minorities (Article 27 of the International
Covenant on Civil and Political Rights), 08/04/94, Doc. United Nations CCPR/C/21/Rev. 1/Add.5, paragraph 7; cited in IACHR,
Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, paragraph 130, footnote No. 97],
inasmuch as hunting, fishing, and gathering are an essential element of indigenous culture [I/A Court H.R. Case of the Yakye Axa
Indigenous Community v. Paraguay. Merits, Reparations, and Costs. Judgment of June 17, 2005. Series C No. 125, paragraph
140]. This complex notion of indigenous property rights is also reflected in the United Nations Declaration, according to which
“Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason
of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.” [United Nations
Declaration, above, note 1, article 26.2].
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IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann v. United States, December 27, 2002, paragraph 128.
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IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann v. United States, December 27, 2002, paragraph 128.
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IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, paragraph 128.