73
event that possession not be a requisite for restitution rights, the Court will analyze,
in the second place, whether enforcement of said rights is time-restricted. Finally,
the Court will address the actions that the State must take to enforce indigenous
communal property rights.
i)
The possession of the lands
127. Acting within the scope of its adjudicatory jurisdiction, the Court has had the
nopportunity to decide on indigenous land possession in three different situations. On
the one hand, in the Case of the Mayagna (Sumo) Awas Tingni Community, the
Court pointed out that possession of the land should suffice for indigenous
communities lacking real title to property of the land to obtain official recognition of
that property, and for consequent registration. 190 On the other hand, in the Case of
the Moiwana Community, the Court considered that the members of the N’djuka
people were the “legitimate owners of their traditional lands” although they did not
have possession thereof, because they left them as a result of the acts of violence
perpetrated against them. In this case, the traditional lands have not been occupied
by third parties.191 Finally, in the Case of the Indigenous Community Yakye Axa, the
court considered that the members of the Community were empowered, even under
domestic law, to file claims for traditional lands and ordered the State, as measure of
reparation, to individualize those lands and transfer them on a for no consideration
basis.192
128. The following conclusions are drawn from the foregoing: 1) traditional
possession of their lands by indigenous people has equivalent effects to those of a
state-granted full property title; 2) traditional possession entitles indigenous people
to demand official recognition and registration of property title; 3) the members of
indigenous peoples who have unwillingly left their traditional lands, or lost
possession therof, maintain property rights thereto, even though they lack legal title,
unless the lands have been lawfully transferred to third parties in good faith; and 4)
the members of indigenous peoples who have unwillingly lost possession of their
lands, when those lands have been lawfully transferred to innocent third parties, are
entitled to restitution thereof or to obtain other lands of equal extension and quality.
Consequently, possession is not a requisite conditioning the existence of indigenous
land restitution rights. The instant case is categorized under this last conclusion
129. Paraguay acknowledges the right of indigenous peoples to claim restitution of
their lost traditional lands. In fact, Law No. 904/81 provides the procedure to be
followed to claim privately-owned lands. The pertinent rules therein point out that:
Section 24.- Claims of privately-owned lands for the settlement of indigenous
communities shall be filed by the community itself, or by any member thereof or by any
representative with legal entity, directly with the I.B.R. or through the [INDI].
The IBR may proceed to do so ex officio, in conjunction with the Institute.
190
Cf. Case of the Mayagna (Sumo) Awas Tingni Community, supra note 184, para. 151.
191
Cf. Case of the Moiwana Community. Judgment of June 15, 2005. Series C No. 124. para. 134.
192
Cf. Case of the Indigenous Community Yakye Axa, supra note 1, paras. 124-131.