CERD/C/102/D/54/2013 (ii) Scope 6.4 Regarding the scope and applicability of article 5 (d) (v) in this case, the Committee notes that the complaint does not raise the issue of legal determination of Sami property rights under national law, in other words, whether the right is of ownership of land or a usufructuary right but, rather, that of whether the facts related to the mining concessions before the Committee raise an issue of violation of the Convention. (iii) Relevant principles 6.5 The Committee recalls that, in its general recommendation No. 23 (1997), it calls upon States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories (para. 5). As recalled in the decision of admissibility, these human rights law standards are also found in the United Nations Declaration on the Rights of Indigenous Peoples, which Sweden voted in favour of. Article 26 of the Declaration reads as follows: 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. 6.6 The Committee observes that, as the raison d’être of these principles, the close ties of indigenous peoples to the land must be recognized and understood as the fundamental basis of their cultures, spiritual life, integrity and economic survival. Their “relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations”.14 In this regard, the realization of indigenous peoples’ land rights may also be a prerequisite for the exercise of the right to life, as such, and to “prevent their extinction as a people”.15 6.7 In this context, the Committee recalls that to ignore the inherent right of indigenous peoples to use and enjoy land rights and to refrain from taking appropriate measures to ensure respect in practice for their right to offer free, prior and informed consent whenever their rights may be affected by projects carried out in their traditional territories constitutes a form of discrimination as it results in nullifying or impairing the recognition, enjoyment or exercise by indigenous peoples, on an equal footing, of their rights to their ancestral territories, natural resources and, as a result, their identity.16 14 15 16 Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment, 31 August 2001, para. 149. Inter-American Court of Human Rights, Case of the Saramaka People. v. Suriname, Judgment, 28 November 2007, para. 121. See also Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment, 29 March 2006. The Inter-American Court of Human Rights has acknowledged in several cases that indigenous peoples’ rights are indeed protected within the framework of communal property. See for further reference constant jurisprudence since the Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua and the concurring opinion of Sergio García-Ramírez in this case, para. 13. The same principles were recognized in the African Human Rights System. See Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, 276/03, 2009, and African Commission on Human and Peoples’ Rights v. Republic of Kenya, application No. 006/2012, 2017. 11