2
certain point as a "spiritual act"3. As another anthropologist and sociologist added, in
an expertise, in the same hearing, the lands of the indigenous peoples constitute a
space which is, at the same time, geographical and social, symbolic and religious, of
crucial importance for their cultural self-identification, their mental health, their social
self-perception4.
6.
As it can be inferred from the testimonies and expertises rendered in the
aforementioned public hearing, the Community has a tradition contrary to the
privatization and the commercialization and sale (or rent) of the natural resources (and
their exploitation)5. The communal concept of the land - including as a spiritual place and its natural resources form part of their customary law; their link with the territory,
even if not written, integrates their day-to-day life, and the right to communal property
itself has a cultural dimension. In sum, the habitat forms an integral part of their
culture, transmitted from generation to generation.
7.
The Inter-American Court has duly acknowledged these elements, in paragraph
141 of the present Judgment, in which it points out that
"(...) Among the indigenous persons there exists a communitarian tradition about
a communal form of the collective property of the land, in the sense that the ownership of
this latter is not centered in an individual but rather in the group and his community. (...)
To the indigenous communities the relationship with the land is not merely a question of
possession and production but rather a material and spiritual element that they ought to
enjoy fully, so as to preserve their cultural legacy and transmit it to future generations".
8.
We consider it necessary to enlarge this conceptual element with an emphasis
on the intertemporal dimension of what seems to us to characterize the relationship of
the indigenous persons of the Community with their lands. Without the effective use
and enjoyment of these latter, they would be deprived of practicing, conserving and
revitalizing their cultural habits, which give a meaning to their own existence, both
individual and communitarian. The feeling which can be inferred is in the sense that,
just as the land they occupy belongs to them, they in turn belong to their land. They
thus have the right to preserve their past and current cultural manifestations, and the
power to develop them in the future.
9.
Hence the importance of the strengthening of the spiritual and material
relationship of the members of the Community with the lands they have occupied, not
only to preserve the legacy of past generations, but also to undertake the
responsibilities that they have assumed in respect of future generations. Hence,
moreover, the necessary prevalence that they attribute to the element of conservation
over the simple exploitation of natural resources. Their communal form of property,
much wider than the civilist (private law) conception, ought to, in our view, be
appreciated from this angle, also under Article 21 of the American Convention on
Human Rights, in the light of the facts of the cas d'espèce.
3.
Testimony of Mr. Theodore Macdonald, anthropologist, in ibid., pp. 67-68.
4.
Expertise of Mr. Rodolfo Stavenhagen Gruenbaum, anthropologist and sociologist, in ibid., pp. 71-72.
5.
Cf., e.g., the testimony of Mr. Charlie Webster Mclean Cornelio, member of the Community Mayagna, in
ibid., p. 40, and the expertise of Mr. Rodolfo Stavenhagen Gruenbaum, anthropologist and sociologist, in ibid., p. 78.