74
Section 25.- Land claims shall meet the requirements set forth in subsection a) of
Section 22,193 including full name of the owners of the piece of land occupied by
indigenous communities. Claims shall be processed under the rules outlined in said
Section.
Section 26.- In case of condemnation, the procedure and compensation shall be
governed by the Constitution and the laws, condemnation compensations shall be paid
out of the appropriations of the necessary funds to be made in the National General
Budget.
130. Consequently, under the very laws of Paraguay, the members of the
Sawhoyamaxa Community have the right to claim restitution of their traditional lands
even though said lands may be privately held and they, as claimants, may not be in
full possession therof.
ii) Time-restriction on the right to restitution
131. The second issue under analysis refers to whether the right to the restitution
of traditional lands lasts indefinitely in time. In order to solve this matter, the Court
takes into consideration that the spiritual and material basis for indigenous identity is
mainly supported by their unique relationship with their traditional lands. As long as
said relationship exists, the right to claim lands is enforceable, otherwise, it will
lapse. Said relationship may be expressed in different ways, depending on the
particular indigenous people involved and the specific circumstances surrounding it,
and it may include the traditional use or presence, be it through spiritual or
ceremonial ties; settlements or sporadic cultivation; seasonal or nomadic gathering,
hunting and fishing; the use of natural resources associated with their customs and
any other element characterizing their culture.194
132. It is to be further considered that the relationship with the land must be
possible. For instance, in situations like in the instant case, where the relationship
with the land is expressed, inter alia, in traditional hunting, fishing and gathering
activities, if the members of the indigenous people carry out few or none of such
traditional activities within the lands they have lost, because they have been
prevented from doing so for reasons beyond their control, which actually hinder
them from keeping up such relationship, such as acts of violence or threats against
them, restitution rights shall be deemed to survive until said hindrances disappear.
193
Section 22 of Law No. 904/81 prescribes that:
The following procedure shall be followed for indigenous communities´ settlements in
state lands:
a) The Institute shall notify the I.B.R. of the existence of an indigenous community,
detailing number of members, settlement location, time of stay, crops and
improvements, actually occupied area and any additional land claimed to satisfy their
economic and expansion needs;
b) Location of the area according to the I.B.R.´s property cadastral registry within
twenty days from filing date;
c)
Visual inspection by I.B.R. within thirty days from cadastral location date, including
filing of report in said term;
d) Surveying and marking of the area by the I.B.R. within sixty days from date of
filing of the report by the officer authorized to perform the visual inspection;
e) Approval of surveying report within thirty days from filing date; and
f)
I.B.R. Resolution based on prior approving report issued by the Institute,
authorizing indigenous community settlement.
194
Cf. Case of the Indigenous Community Yakye Axa, supra note 1, para. 154.