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. 22

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