GUIDELINES FOR IMPLEMENTING THE RIGHT OF INDIGENOUS PEOPLES TO FREE, PRIOR AND INFORMED CONSENT
includes, among others, the rights of members of the indigenous communities
within the framework of communal property.8
With its evolutionary interpretation of Article 21 of the American Convention, the
Court has embraced the indigenous concept of property, giving that right a scope
that includes a diversity of valid ways of life worthy of protection and guarantee.
Thus, the judgment of the Awas Tingni Case recognises that [a]mong Indigenous
Peoples there is a communitarian tradition regarding a communal form of collective
property of the land, in the sense that ownership of the land is not centered on an
individual but rather on the group and its community,9 and assumes that this form
of ownership also requires protection.
The Inter-American Court has defined that the close relationship between indigenous
communities and their traditional territories, including the natural resources found
therein and the intangible components derived from them, are also subject to
protection under article 21 of the American Convention.10 It has interpreted article
21 of the American Convention in the sense that it guarantees enjoyment of an
intangible good, such as the special relationship that ties Indigenous Peoples to
their territory. It does not merely refer to material possession and use, but rather
indigenous relations to the land are a material and spiritual element which they
must fully enjoy, even to preserve their cultural legacy and transmit it to future
generations.11
8 Inter-American Court. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Judgment of August 31,
2001. Paragraph 148.
9 Paragraph 149. Judgment in the Awas Tingni Case
10 Inter-American Court. Case of the Yakye Axa Indigenous Community v. Paraguay. Judgment of June 17, 2005.
Paragraph 137.
11 Paragraph 149. Judgment in the Awas Tingni Case
12