47 “the area transferred must be sufficient for conservation of their form of life, to ensure their cultural and 146 economic viability, as well as their own expansion” . 167. Under the inter-American human rights instruments, indigenous and tribal peoples have the right to recognition and protection of their specific versions of the right to use and enjoy property, 147 “springing from the culture, uses, customs, and beliefs of each people.” There is not just one form of using and enjoying property protected; both the property and the mode of possession of territories by 148 indigenous and tribal peoples can differ from the non-indigenous notion of ownership. The unique indigenous relationship to 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 associated with their customs and any other element 149 150 characterizing their culture.” Any one of these modalities is protected by Article 21 of the Convention. 168. The allocation of suitable and culturally adequate territorial property enables the respective indigenous peoples and their members to have access to food, water, and their traditional health and healing systems. Consequently, the suitability and cultural adequacy of the property title may 146 IACHR, ”Indigenous and tribal peoples’ rights over their ancestral lands and natural resources – Norms and Jurisprudence of the Inter-American Human Rights System”, 2010 147 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, par. 120. 148 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, par. 120. 149 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, par. 131. 150 Indeed, as clarified by the IACHR, the general international legal principles applicable in the context of indigenous human rights include “the right of indigenous peoples to legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property” [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 130]; indigenous and tribal peoples have a right to communal property over the lands they have traditionally used and occupied, and “the character of these rights is a function of [the respective people’s] customary land use patterns and tenure” [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 151]. For the Inter-American Court, “disregard for specific versions of use and enjoyment of property, springing from the culture, uses, customs, and beliefs of each people, would be tantamount to holding that there is only one way of using and disposing of property, which, in turn, would render protection under Article 21 of the Convention illusory for millions of persons” [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, par. 120]. The notion of use of indigenous territory is understood by the Court in a broad sense, which encompasses not only permanent occupation of such territory, but also an entire array of activities, both permanent and seasonal, aimed at the use of land and natural resources for subsistence purposes, and also at other uses related to the exercise of indigenous culture and spirituality. This interpretive approach is supported by the terms of other international instruments, which indicate international attitudes towards the role of traditional land tenure systems within modern human rights protection systems; for example, ILO Convention 169 expressly establishes the state duty to “safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.” [ILO Convention 169, Art. 14.1]. The right to legal recognition of indigenous peoples’ distinctive forms and modalities of control, property, use and enjoyment of territories, property and natural resources is also protected by Art. 27 of the International Covenant on Civil and Political Rights, which establishes the right of persons who belong to ethnic, religious or linguistic minorities to enjoy their own culture together with other members of the group [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 130, footnote No. 97], given that said distinctive forms and modalities of relating to territory are manifestations of indigenous peoples’ culture. 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 (1994): Article 27 (rights of minorities), CCPR/C/21/rev.1/Add.5 (1994), par. 7; cited in IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 130, footnote No. 97]. Therefore the protection of the cultural rights of an indigenous people may encompass traditional activities of relatedness to natural resources, such as fishing or hunting [Comité de Derechos Humanos, Observación General No. 23: Los derechos de las minorías (Art. 27 del PIDCP), 08/04/94, Doc. ONU CCPR/C/21/Rev. 1/Add.5, párrafo 7; citado en CIDH, Informe No. 75/02, Caso 11.140, Mary y Carrie Dann v. Estados Unidos, 27 de diciembre de 2002, párr. 130, nota al pie No. 97.], insofar as hunting, fishing and gathering are essential elements of the indigenous culture [Corte IDH. Caso Comunidad Indígena Yakye Axa Vs. Paraguay. Fondo, Reparaciones y Costas. Sentencia 17 de junio de 2005. Serie C No. 125, párr. 140]. This complex notion of the right to indigenous property is also reflected in the United Nations Declaration on the Rights of Indigenous Peoples, by 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 on the Rights of Indigenous Peoples, Article 26.2].