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leaves indefinitely open the possibility of submitting a new offer, and so on
and so forth;
f) the bills of law on condemnation presented by the Community in 1997
and 2000 to the Congress also proved to be an ineffective land restitution
method. This approach only rendered positive results in the cases where the
owners were willing to negotiate the transfer of the claimed lands, and
g) to the causes of the failure by the State to comply with the duty to adopt
measures must be added the failure to apportion to the INDI the necessary
funds to acquire lands for indigenous communities; the continuous denial by
the Congress to expedite condemnations in favor of the indigenous
communities; the lack and ineffectiveness of provisional and environmental
injuctions aimed at protecting the habitat of the Sawhoyamaxa Community.
These omissions by the State amount to a violation of Articles 1(1) and 2 of
the Convention.
Argument by the State
76.
In relation to Articles 8, 25, 1(1) and 2 of the American Convention, the State
alleged that:
a) in the administrative proceedings, all the steps necessary to allow the
Community to make possession and property claims with respect to their
ancestral lands were effectively taken;
b) the actions taken by the attorneys for the Sawhoyamaxa Community in
the domestic courts have always been inadequate, untimely or clearly
insufficient. Indeed, having statutory remedies available to them, in no case
did they challenge any of the resolutions by administrative authorities, which
became final by operation of law;
c) the representatives are the ones burdened with proving the inexistence
of adequate and effective remedies. However, in the instant case, available
remedies have not been sought. For example, the administrative-law remedy;
d) it is true that the final step in any administrative action is the adoption of
a resolution by the IBR ordering condemnation of the land, or as the case
may be, dismissing the request for condemnation, based on whether the
claimed piece of land is determined to be rationally exploited or not. In the
instant case, the second course was precisely the one taken. If the resolution
is based on statutory rules such as the Agrarian Law, which takes into
consideration the suitableness for production purposes of the lands claimed, it
is logical for the authorities to conclude that the lands claimed by the
Sawhoyamaxa Community failed to meet condemnation requirements.
However, since the remedies to judicially challenge the administrative
authorities’ possible misconstruction of said statute have not been exhausted,
the resolutions adopted with respect to the request of the Community have
become final by the latter’s consent;
e)
an essential requirement to access communal property of the land is to
have obtained legal personality. Under Article 62 of the National Constitution
of Paraguay, no ethnic group or people, such as the Enxet Lengua in the