Headlines, Human Rights, Indigenous Rights, Latin America & the Caribbean

RIGHTS-PARAGUAY: Int'l Backing for Indigenous Land Claims

Natalia Ruiz Díaz

ASUNCIÓN, Oct 9 2009 (IPS) - After 20 years of fighting for their ancestral lands in Paraguay's northwestern Chaco region, the Xákmok Kásek indigenous community's case has reached the Inter-American Court of Human Rights.

The impoverished community made up of 65 families of the Sanapaná people – one of 20 indigenous groups in this land-locked South American country – live in harsh conditions on 1,000 hectares of land granted by the state.

The authorities promised to restore to them the 10,700 hectares they claim in the province of Presidente Hayes, which has one of the highest concentrations of Amerindians in the country.

But in the face of the non-fulfilment of that promise, the Inter-American Commission on Human Rights (IACHR) brought the case to the Inter-American Court of Human Rights on Jul. 3.

The IACHR, which received the first complaint filed in the case in 2001, asked the Inter-American Court to order the state to grant land to the Xákmok Kásek indigenous community, and to provide them with healthcare and nutritional and educational services.

The Commission also asked the Court to order the state to pay the community reparations "for material and immaterial damages," and to pay the legal costs and expenses incurred by the victims in bringing the case to court in Paraguay and in the inter-American human rights system.

The IACHR argued that the lack of a satisfactory resolution of the community's claim affects their access to their land and aggravates their vulnerability in terms of food security and healthcare, while threatening their very survival.

Amerindians comprise two percent of Paraguay's 6.1 million people. Besides tiny white, black and Asian minorities, the rest of the country's population is of mixed Spanish and Guaraní (the main indigenous group) descent.

"Our living conditions are precarious, and water is a big problem that we face year after year," Gerardo Larrosa, the leader of the Xákmok Kásek community, told IPS by cellphone.

The families live in huts, without access to drinking water or healthcare. Their children are undernourished, and there are cases of tuberculosis, diarrhoea and Chagas disease (a tropical parasitic disease), as well as occasional outbreaks of other illnesses.

The IACHR submission states that 28 people died between 1991 and 2007, including 19 children – deaths that could have been prevented by basic medical care.

"We have a small school in the community, donated by a private institution, but we have no support from the state," Larrosa said.

The Xákmok Kásek community first filed a formal claim to their land in 1986, but the lack of response from the authorities prompted them to bring legal action in 1990.

Since then the land claimed by the indigenous people has been in the hands of several different landowners, and part of it has been cleared to make way for various cattle ranching establishments.

"The indigenous people were stripped of their land, so access to their traditional means of subsistence (hunting and fishing) was restricted, and members of the community were obliged to work in slave-like conditions on the cattle ranches," activist Ricardo Morínigo of the non-governmental organisation Tierraviva, which sponsored the land claim, told IPS.

For over a decade, the owner of the Salazar ranch has refused to sell the portion of his land claimed by the Xákmok Kásek. Today, nearly 40 percent of the territory they claim is in the hands of a new owner who is also refusing to sell.

"On top of the landowners' refusals, successive governments have shown little interest in expropriating the land (in exchange for payment)," said Morínigo.

The government wants "a friendly settlement, an agreement under which the land the community claims is bought and expropriated," Abraham Franco, of the Attorney-General's Office and a member of the inter-institutional commission dealing with the IACHR and the Inter-American Court in this case, told IPS.

An even greater obstacle, according to Franco, is that part of the claimed territory has been declared a private reserve by government decree.

In January 2008, the state declared the Salazar ranch a protected wilderness area under private ownership for a five-year period. Some of the reserve overlaps with the land claimed by the Xákmok Kásek community.

Under Law 352/94, private wilderness areas cannot be expropriated while their status as protected areas is in effect. Cattle ranchers in the Chaco frequently take advantage of these provisions to avoid expropriation.

Xákmok Kásek is one of the few Sanapaná communities remaining in the Chaco. One of its salient features is its music and dance, which differ from those of other indigenous groups within the Maskoy linguistic family, to which it belongs.

Contact with non-indigenous groups that settled in the Chaco in the late 18th century invigorated this musical tradition. The Sanapaná people today continue to make their own instruments: drums, flutes, and violins, adapted from European culture.

The community has shrunk considerably in little more than a decade. In 1995 it comprised 113 families with a total of 449 people, while in 2009 there are 65 families with 268 people.

Larrosa said the fall in numbers is due to several families having left the community, because of the tough living conditions and the lack of response to their demands.

The Xákmok Kásek community's claim is the third indigenous suit against the Paraguayan state to be presented by the IACHR to the Inter-American Court.

The highest human rights court in the Americas has already convicted Paraguay in two other cases involving indigenous communities: the Yakye Axa community in 2005 and the Sawhoyamaxa community in 2006 – both of which belong to the Enxet people of the Chaco region – for violating their rights to life, property and protection under the law.

The time periods set by the Court for the restitution of territories have expired in both cases. For the Yakye Axa community, the government of President Fernando Lugo requested expropriation of the land in November 2008, but the request is still being considered in the Senate.

In the case of the Sawhoyamaxa community, the Court held a follow-up hearing in July to review compliance with its verdict. At the hearing, the state admitted that the legal owner of the land had refused to reach a friendly settlement, and promised to press again for expropriation.

In Morínigo's view, the new suit shows that the state has no interest in guaranteeing the survival of indigenous peoples.

"At this time of supposed 'change,' the Xákmok Kásek case has come before the Court because of the government's inaction," Larrosa told IPS as he headed back to his community.

He was referring to the platform of change on which centre-left President Lugo was elected last year.