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ancestral territory, depriving them not only of material possession of their
territory but also of the basic foundation for the development of their culture,
their spiritual life, their wholeness and their economic survival.
Pleadings of the representatives
121.
With regard to Article 21 of the Convention, the representatives alleged that:
a) it includes the right of indigenous communities and peoples to communal
ownership of ancestrally inhabited lands, lands that include their traditional
habitat, that is, the habitat the members of these communities have
humanized and in which they have shifted around, and with regard to which
they have ties of belonging. In these lands the indigenous communities and
peoples, by the very fact of their existence, have the right to live freely;
b) acknowledgment of the right to live in the land of their forbears and in the
habitat that was humanized by indigenous communities and peoples, in
accordance with their own manner of life, entails adoption, in Paraguay’s
domestic legal system, of a concept of land property right that is different
from the general concept of the right to private property. In accordance with
this concept, the land becomes once again a source of the indigenous
communities’ and peoples’ life and culture. This, in turn, entails adopting
criteria to assess land use that are different from those applied in private law
and in agrarian law itself;
c) the Paraguayan National Constitution acknowledges the right of
indigenous peoples, as cultural groups prior to establishment of the State, to
live on their ancestral lands and in their respective habitat. The Constitution
is complemented by ILO Convention No. 169, included in Paraguayan
domestic legislation by means of Law No. 234 of 1993. Thus, ILO Convention
No. 169, under the terms of Article 29(b) of the Convention, establishes the
scope given by Paraguayan legislation to the right to property, and also
places the State under the obligation to protect the right to communal
property;
d) the right of the indigenous communities to collective ownership of their
traditional lands is reflected, among other things, in the obligation of the
State to delimit, demarcate and issue title deeds to the territory of the
respective communities. Likewise, the State has the obligation to return to
the indigenous communities and peoples their ancestral lands and their
habitat, as well as to protect them from third parties who seek to disturb their
possession or carry out acts against their wholeness, regarding the existence,
value, use or enjoyment of the lands located in the geographical areas where
the members of the Community live and conduct their activities;
e) the obligation of the States to restore the lands of the indigenous
communities must be fulfilled in accordance with the latter’s customary law,
values, pracrtices, and customs;
f) in the process of claiming the Community’s ancestral lands before the IBR
and before the INDI, the State has acknowledged and identified the territory
that must be demarcated and delimited and regarding which a title deed must
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