123. The Court observes that, although addressed in the part of the Charter which
enshrines the rights recognised for individuals, the right to property as guaranteed by
Article 14 may also apply to groups or communities; in effect, the right can be
individual or collective.
124. The Court is also of the view that, in its classical conception, the right to property
usually refers to three elements namely: the right to use the thing that is the subject
of the right (usus), the right to enjoy the fruit thereof (fructus) and the right to dispose
of the thing, that is, the right to transfer it (abusus).
125.
However, to determine the extent of the rights recognised for indigenous
communities in their ancestral lands as in the instant case, the Court holds that Article
14 of the Charter must be interpreted in light of the applicable principles especially by
the United Nations.
126.
In this regard , Article 26 of the United Nations General Assembly Declaration
61/295 on the Rights of Indigenous Peoples adopted by the General Assembly on 13
September 2007, provides 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
recogn ition shall be conducted with due respect to the customs, traditions and land tenure
systems of the indigenous peoples concerned."
127.
It follows in particular from Article 26 (2) of the Declaration that the rights that can
be recognised for indigenous peoples/communities on their ancestral lands are
variable and do not necessarily entail the right of ownership in its classical meaning,
including the right to dispose thereof (abusus). Without excluding the right to property
in the traditional sense, this provision places greater emphasis on the rights of
possession, occupation, use/utilization of land .
36
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