A/HRC/45/38 2. Article 26 (2) 23. Since 1997, the Committee on the Elimination of Racial Discrimination has used similar wording to article 26 (2) when referring to indigenous peoples’ right to own, develop, control and use their communal lands, territories and resources. 47 The regional human rights bodies have, in the Sawhoyamaxa and Endorois cases, interpreted regional instruments in light of the rights enshrined in the Declaration. 48 In the Endorois case, the African Commission on Human and Peoples’ Rights concluded that “traditional possession of land by indigenous people” should be recognized and protected alongside “state-granted full property title”.49 In the Mayagna (Sumo) Awas Tingni case, the Inter-American Court of Human Rights stated that “property rights created by indigenous customary law norms and practices must be protected” and that “non-recognition of the equality of property rights based on indigenous tradition is contrary to the principle of non-discrimination”. In African Commission on Human and Peoples’ Rights v. Kenya, the African Court on Human and Peoples’ Rights recognized the right of the Ogieks to the Mau Forest of Kenya as their ancestral home. The preservation of the Mau Forest could not justify the eviction of the Ogieks from their ancestral home. The African Court also pronounced itself on the meaning of article 26 (2) of the Declaration: “without excluding the right to property in the traditional sense, this provision places greater emphasis on the rights of possession, occupation, and use of land”. 24. The Caribbean Court of Justice and the Supreme Court of Belize have invoked the Declaration when interpreting the Constitution of Belize to protect the rights of the Mayan people to their traditional lands. In 2007, the Chief Justice of the Supreme Court, in Aurelio Cal et al. v. Attorney General of Belize, found that article 26 of the Declaration reflected “the growing consensus and the general principles of international law on indigenous peoples and their lands and resources”. He found that the Mayan communities of Conejo and Santa Cruz held customary title to their lands and ordered the Government to respect and demarcate their territory. 25. Other national courts too have recognized traditional ownership as a legitimate form of land tenure, such as the Supreme Court of Sweden in the Nordmaling case (2011), which considered the rights of Sami reindeer herders “on the basis of customary rights” rather than the State law of “immemorial prescription”.50 In 2009, the Supreme Court of Brazil affirmed the constitutionality of the Raposa Serra do Sol lands, demarcated 10 years previously by the State, and ordered the Government to resume its removal of all nonindigenous settlers.51 3. Article 26 (3) 26. Under this article, States should take action to give both legal recognition and protection to indigenous lands, territories and resources while respecting indigenous peoples’ customs, traditions and land systems. The right is equivalent to a State-granted full property title and entitles indigenous peoples to demand official recognition and registration of property title. As indicated by the Special Rapporteur on the rights of indigenous peoples, “a starting point for any measures to identify and recognize indigenous peoples’ land and resource rights should be their own customary use and tenure systems”. 52 This is often achieved through demarcation, delimitation, mapping and titling. As the Inter-American Court of Human Rights has stated, “merely abstract or juridical recognition of indigenous 47 48 49 50 51 52 8 CERD/C/KEN/CO/5-7, para. 20 (b). Committee’s general recommendation No. 23 (1997) on the rights of indigenous peoples. Inter-American Court of Human Rights, Case of the Sawhoyamaxa Indigenous Community v. Paraguay, judgment, 29 March 2006, para. 138. See also Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, para. 209. Defined as “where a property or right has been enjoyed for such a long time, and exercised, that no one remembers when the right came to be”. www.loc.gov/law/foreign-news/article/sweden-courtrecognizes-exclusive-fishing-rights-of-sami-village. www.forestpeoples.org/en/location/brazil/news/2009/05/supreme-court-upholds-raposa-serra-do-solindigenous-area. A/HRC/33/42/Add.3.