culture, ILO Convention No. 169 recognizes indigenous peoples’ rights of ownership and possession over the lands that they ‘traditionally occupy’ (Art. 14). Two aspects deserve to be underscored with regard to this provision. First, the Convention refers to ‘rights’ in the plural as it acknowledges that while there can be cases where a full right to property shall be conferred on indigenous peoples, there can also be cases where only a right of possession and use can be recognized. Therefore, the specific situation of the various indigenous peoples needs to be examined on a case-by-case basis. In particular, Article 14 sets out that measures shall be taken to safeguard the right of indigenous peoples to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Second, the Convention uses the expression ‘traditionally occupy’ suggesting that, although the ‘occupation’ of a land is a prerequisite for the recognition of rights over it, the provision also covers those cases where indigenous peoples have lost the possession of their lands. The Guide to the ILO Convention No. 169 stresses that: ‘[i]t was suggested, at various times during the discussion of the adoption of the Convention that this provision should read “have traditionally occupied” which would have indicated that the occupation would have to continue into the present to give rise to any rights. The wording, as it was adopted [i.e. lands which they traditionally occupy], does indicate that there should be some connection with the present – a relatively recent expulsion from these lands, for example, or a recent loss of title. It should also be read in connection with paragraph 3 of article 14 which requires that a procedure for land claims be established …’ 341 Despite the fact that no mention is made of the collective or individual nature of the rights of ownership and possession to be conferred on indigenous peoples, the ILO seems to give preference to the former as it is aware of the implications that this choice has. Indicative in this respect are, for example, the comments made by the Governing Body’s tripartite committee when dealing with a representation concerning Peru, in which the Committee noted ‘from its experience acquired in the application of the Convention and its predecessor, that the loss of communal land often damages the cohesion and viability of the people concerned’.342 Pursuant to Article 14, paragraph 2, states are called upon to take the necessary steps to identify indigenous peoples’ traditional lands. This article should be read in conjunction with Article 6 regulating the procedure of consultation with indigenous peoples with regard to the 34 adoption of administrative and legislative measures which may affect them directly. Therefore, the demarcation of indigenous peoples’ lands is to be carried out following consultation with the peoples affected, through their representative institutions and according to appropriate procedures accommodating indigenous decision-making procedures. Also, the practice of ILO supervisory bodies has emphasized that, pending demarcation, transitional measures should be taken to safeguard indigenous peoples’ interests in the lands.343 Moreover, under Article 14, paragraph 3, states are obliged to set up adequate procedures to resolve land claims by the peoples concerned. Such mechanisms are intended, in particular, to allow indigenous peoples to recover the possession over lands that they have lost or to obtain compensation for this loss.344 Lastly, it is worth recalling that Article 18 requires that states establish penalties for unauthorized intrusion upon, or use of, the lands of the peoples concerned and take measures to prevent these offences. Indigenous peoples and the exploitation of natural resources located in their lands While conferring on indigenous peoples the right to the natural resources pertaining to their lands, Article 15, paragraph 2, of the Convention acknowledges that, in many cases, states retain the ownership of mineral and subsurface resources. In these cases, the Convention lays down that the state shall establish or maintain procedures through which they shall consult indigenous peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The Convention also stipulates that indigenous peoples shall, wherever possible, participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities. Once again, it should be noted that this provision has to be read in conjunction with Article 6 of the Convention establishing the procedure of consultation. In this regard, it should be emphasized that, according to paragraph 2 of Article 6, consultations with indigenous peoples shall be undertaken with ‘the objective of achieving agreement or consent to the proposed measures’. Even though this provision does not confer on indigenous peoples any right to veto, it is worth stressing that the Convention does require that the parties concerned engage in a genuine dialogue in order to reach appropriate solutions that can accommodate indigenous peoples’ concerns.345 MINORITY GROUPS AND LITIGATION: A REVIEW OF DEVELOPMENTS IN INTERNATIONAL AND REGIONAL JURISPRUDENCE