Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Chile (Ratification: 2008)

Other comments on C169

Observation

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With reference to the comments made in 2010, the Committee notes the replies provided by the Government in September and November 2011, and the additional information provided in September, October and November 2012. Furthermore, the Committee notes the content of the observations sent by the Single Central Organization of Workers (CUT), the National Confederation of Artisanal Fishers of Chile (CONAPACH) and the National Confederation of Unions of Bakery Workers (CONAPAN), which were forwarded to the Government in September, October and November 2010. CONAPACH and CONAPAN provided a detailed alternative report from the Aymara people. The CUT forwarded a detailed alternative report prepared in the Araucanía region, as well as documentation prepared by the Coordinating Unit of Mapuche Organizations and Communities from the Araucanía region and the Pelón Xaru Mapuche Nation Peoples Culture Centre. The CUT forwarded specific information from the Kawésqar indigenous community located in Puerto Edén, the Rapa Nui people and representatives of urban Mapuche organizations. In the report received in September 2011, the Government indicated that it had replied to the substantive issues raised by the indigenous organizations.

Communication from the International Organisation of Employers (IOE). The Committee notes that the IOE has submitted observations in August 2012 on the application in law and practice of Articles 6, 7, 15 and 16 of the Convention concerning the requirement of consultation. In this regard, the IOE raises the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus of indigenous and tribal peoples, and the importance for the Committee to be aware of the consequences of the issue in relation to legal security, financial costs and certainty of both public and private investment. The IOE refers to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also states that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to include in its next report any comments that it deems appropriate on the observations made by the IOE.

Article 3 of the Convention. Human rights and fundamental freedoms. With reference to the serious dispute between the Government and the Mapuche peoples referred to in its 2010 direct request, the Committee notes with interest that Act No. 20477, adopted on 30 December 2010, modified the jurisdiction of military tribunals. Civilians and minors may in no event be subject to the jurisdiction of military tribunals as defendants, although they retain the right to assistance to take action in military tribunals as victims or initiators of penal action. The Government indicates in its report of September 2011 that cases against Mapuche individuals for terrorist crimes have been reclassified in order to be considered as ordinary crimes. Furthermore, detailed information was provided on some of the proceedings against Mapuche individuals. The Committee requests the Government to provide updated information in its next report on the cases that are being tried in which there are still Mapuche defendants. Taking into account the concern expressed by indigenous organizations, the Committee invites the Government to indicate the measures adopted to prevent the use of force or coercion in violation of the human rights and fundamental freedoms of the peoples concerned.

Article 1. Self-identification. The Committee notes that in the CUT’s comments two communities were identified which indicated that they are not taken into consideration in the national legislation: a coastal community in the North, known as the Changa people; and another coastal and fishing community in the Lakes and Aysén regions, known as the Chono people. The Huilliche and Pehuenche communities have also called for recognition as distinct peoples. The CUT forwarded a document by an ancestral Mapuche Huilliche organization in the Rios and Lakes regions. The Committee also notes the documentation prepared by the General Council of Huilliche Chiefs from Chiloé, forwarded by CONAPAN, which describes itself as an ancestral organization representing the historical continuity of former caciques. The General Council represents around 5,000 families organized into communities, divided into five communes in the province of Chiloé (the Lakes region). The General Council calls for them to be granted legal recognition so as to be able to ensure the application of the provisions of the Convention in relation to consultation and participation, land, health and education. The Committee invites the Government to indicate the measures adopted so that all the groups of the national population referred to in the communications received from indigenous organizations are protected by measures to give effect to the provisions of Articles 6 and 7 (consultation and participation), 14 (land), 25 (health), and 26 and 27 (education), of the Convention.

Articles 2 and 33. Coordinated and systematic action with the participation of indigenous peoples. New State institutions for indigenous peoples. The Government indicates that in the context of the dialogue process initiated in September 2010, the President of the Republic received a report in June 2011 on the progress made in the process which involved over 1,800 persons and that 49 dialogue forums were established. According to the information provided by the Government, the indigenous representatives expressed concern with regard to representativity, access to basic services and connectivity, development, education, culture and the regularization of land rights. In November 2011, the Government indicated that it was proposed to hold discussions on the new institutions. The stages of “the consultations on consultation”, the consultation for the drafting of the regulation of the right to consultation, were determined in the framework of the National Council of the National Indigenous Development Corporation (CONADI). The Government had proposed to continue developing the new institutional system, replacing CONADI by an Indigenous Development Agency and establishing a new indigenous representation body, the Indigenous Peoples’ Council. The Committee invites the Government to provide information in its next report on the outcome of the consultations on indigenous institutions and the manner in which indigenous peoples’ concerns and priorities were taken into account. The Committee requests the Government to provide precise information on the manner in which the effective participation of indigenous peoples is ensured in the institutions administering programmes affecting them, as required by Article 33 of the Convention.

Articles 6 and 7. Consultation and participation. New legislation. The Government indicates that it took into account the recommendations contained in the general observation made by the Committee of Experts in 2010 on the obligation of consultation when planning the consultations on indigenous institutions. The Committee also notes the exchanges with the Office on the manner of ensuring that the consultations amount to authentic dialogue so that the indigenous peoples can influence their outcome. The Government included in its reports documentation explaining the consultation process, which is also available on the website of the CONADI. In its report received in September 2011, the Government conveys the concern of a group of indigenous leaders who criticize the fact that various highly complex matters are subject to consultations at the same time within a period that they consider inadequate. Furthermore, criticisms were made in the Senate and Chamber of Deputies of the fact that the consultation process appears to be based on Supreme Decree No. 124 of 2009, and not on the Convention. In November 2011, the Government reiterated its intention to repeal Supreme Decree No. 124 of September 2009, which established consultation and participation machinery, and replace it by a new text agreed upon with the representative institutions of indigenous peoples. The CUT recalled that the adoption of Supreme Decree No. 124 was opposed by the Mapuche organizations on the grounds that it was in violation of the essential content of the Convention. The alternative report prepared by the Aymara people also rejected Supreme Decree No. 124. The Committee notes the concerns expressed by the CONAPACH that Supreme Decree No. 124 establishes a mechanism intended to gather the views of indigenous peoples and not to allow dialogue in good faith intended to achieve the consent of those affected by the proposed measures. In the same way as the other indigenous organizations, the alternative report of the Aymara people emphasizes that Supreme Decree No. 124 excludes certain key public bodies from, and restricts the scope of consultations, as it does not promote a process of dialogue in which indigenous peoples can really exercise influence. The CUT also emphasizes the exclusion of certain State bodies from the obligation of consultation and calls for all investment projects that may affect indigenous rights, whether or not in indigenous lands, to be subject to consultation. In September 2012, the Government forwarded its proposal for “legislation on indigenous consultation and participation”, with a view to developing provisions that enjoy consensus to replace Supreme Decree No. 124. The proposed text lays down the principles and a consultation procedure in order to give effect to Article 6(1)(a) and (2) of the Convention, and the Committee notes that it refers to the resettlement of indigenous communities and the significant deterioration of natural resources on which indigenous communities depend. In the reports received in September and October 2012, the Government listed 18 consultations held since March 2010, with five consultation processes being conducted until August 2012 and six planned in the near future. A major national meeting of indigenous representatives has been convened in Santiago in November–December 2012 to review the work carried out by each of the peoples and agree upon a common proposal with the Government. The Committee notes that the Government’s proposal is being discussed in three indigenous languages (Mapuzungun – the Mapuche people, Aymaran and Rapa Nui). The Committee invites the Government to include indications in its next report on the outcome of the efforts made for the adoption of legislation supported by consensus to replace Supreme Decree No. 124. The Committee hopes that the new text will ensure the effective participation of indigenous peoples in decisions which may affect them directly and will give full effect to the corresponding provisions of Articles 6, 7, 15 and 16 of the Convention.

Article 7. Participation. Process of development. In reply to its 2010 comments, the Government indicates that the regional indigenous forums are fundamental bodies for dialogue and participation. The Government indicated that in regions in which indigenous development areas (ADIs) exist, the ADI participation forums should also fulfil the role of regional forums so as not to create parallel institutions. The CUT indicates that the regional indigenous forums have been criticized by indigenous organizations due to the lack of a decision-making body for policies intended for local indigenous peoples. The forums do not have a budget and on many occasions have been dependent on the convocational capacity of the regional authority on which they are dependent, and no regular evaluation is carried out of their activities. Certain forums are not operational. With regard to indigenous development areas, the CUT endorses the criticisms by various indigenous peoples concerning the lack of coordination among public institutions as a basis for developing special policies for such territories. In accordance with the concerns expressed by the CUT, the ADIs practically have not functioned. The CONAPACH expresses its concern at the institutional barriers which limit the political participation of indigenous peoples. It regrets the lack of political will to promote the participation of indigenous peoples in the elected State bodies in which decisions are taken, in the absence of special measures to promote the participation of indigenous peoples or the removal of the institutional obstacles identified in national law and practice in relation to elections and political parties. The Committee invites the Government to include detailed information in its next report on the impact of the consultations that are being held in guaranteeing the participation of indigenous peoples in the formulation, application and evaluation of plans and programmes which may affect them directly. Please include information on the budgetary resources available to the State and the regions to ensure the participation of indigenous peoples in development programmes and for all the other measures provided for in Article 7.

Environmental impact studies. The Committee noted in its direct request in 2010 that the participation by citizens envisaged in Act No. 19300 of March 1994 and its implementing regulations published in December 2002 does not establish a specific requirement for consultation of indigenous peoples that ensures, in accordance with Article 7(3) of the Convention, that studies to assess the social, spiritual, cultural and environmental impact of development activities are carried out in cooperation with indigenous peoples. In the reply received in September 2011, the Government indicated that Act No. 19300 had been amended substantially by Act No. 20417, which entered into force in January 2010. The Committee notes that Act No. 20417 established the Ministry of the Environment, the Environmental Assessment Service and the Environmental Supervisory Service. The Committee observes that the indigenous peoples, in the same way as the Aymara in their alternative report, indicated that sectoral legislation offers less protection than the Convention. In this respect, the Committee notes the rulings of the Supreme Court forwarded by the Government concerning the appeals for environmental protection lodged by indigenous organizations. The CONAPACH also provides decisions resulting from legal action taken by indigenous communities with the support of various NGOs and containing rulings invalidating decisions by State bodies on the grounds that consultations had not been held in accordance with the Convention. The alternative report of the Aymara people refers to other court decisions setting aside appeals for the protection of rights without ruling on the scope of the right to consultation established in the Convention, particularly in relation to studies affecting the province of Parinacota. In October 2012, the Government provided the final report on the process of indigenous consultation on the Regulations on the Environmental Impact Assessment System (SEIA) and the guidelines on the procedures for citizens’ participation and support for the assessment of significant deterioration affecting original peoples. A Ministerial Sustainability Council approved, on 28 May 2012, the draft regulations of the SEIA. The Government also stated that the provisions of the new Regulations provide for “a good faith consultation process” and the possibility, in specific circumstances, for indigenous peoples to be able to contribute to the process of environmental assessment. Furthermore, on 21 November 2012, the Government transmitted to the Office a copy of the SEIA Regulations sent to the Office of the Comptroller General of the Republic. The Committee also notes that certain indigenous organizations lodged an appeal for the protection of their rights on 27 June 2012 with the Court of Appeal of Santiago against the Ministerial Sustainability Council in relation to its decision to approve the Regulations of the SEIA, alleging the failure to hold consultations and the inadequacy of the proposed text in terms of the Convention. The Committee invites the Government to provide information in its next report on the outcome of the appeal for the protection of the rights of certain indigenous organizations lodged against the Regulations of the SEIA. The Committee hopes that the text of the regulations that ensure effect is given to the requirements of consultation, participation and cooperation with indigenous peoples set out in Articles 6 and 7 of the Convention will be provided with the next report. In the event that an environmental impact study involves the prospection or exploitation of resources in indigenous lands and/or the resettlement of indigenous communities, the Committee invites the Government to indicate how compliance is ensured with all the provisions of Articles 15 and 16 of the Convention.

Lands. The Government indicates that the request for the regularization of land titles, greater flexibility in land boundaries and the purchase of land are among the principal matters raised in June 2011 in the context of the dialogue forum for a historical compromise. The Committee notes the activities undertaken by CONADI in the framework of Act No. 19253 and the legislation in force respecting land. In its alternative report, among other matters relating to Article 7 of the Convention, the Aymara people regrets that the proceedings in CONADI prevented the regularization of land titles in the province of Parinacota. Not all the persons concerned are able to regularize their land as they do not have the necessary financial resources. The CONAPACH also places emphasis on the case of the ancestral lands of the communities of the Atacameño, Aymara and Quechua peoples in the north of the country. The CUT recalls the work undertaken in 2003 in the framework of the Historical Truth and New Treatment Commission, which made recommendations concerning lands which were intended to strengthen the protection of indigenous lands, including the demarcation, titularization and protection of the lands over which ancestral indigenous ownership was demonstrated. With reference to Article 14(3) of the Convention, the Historical Truth and New Treatment Commission proposed the establishment of expeditious and low-cost legal procedures to resolve land claims by the persons or communities concerned. It expressed the conviction that the existence of efficient and effective machinery to process land claims would prevent claims being made through informal channels. The CONAPACH recalled the comments of the Committee of Experts concerning the obligation of countries which have ratified the Convention to establish machinery to recognize ownership based on traditional occupation. The CONAPACH also emphasized the conclusions and recommendations on lands and territorial rights of the UN Special Rapporteur submitted to the Human Rights Council following a working visit in April 2009. In his recommendations (paragraphs 53 and 54 of document A/HRC/12/34/Add.6, 5 October 2009), the UN Special Rapporteur referred to the Convention and supported the call for the establishment of effective machinery for the recognition of the land rights of indigenous peoples based on occupation and traditional or ancestral use. In view of the persistence of a situation that is not in compliance with the Convention, the Committee reiterates its request to the Government to report in detail on the compliance with the Convention of the procedures for the regularization of land title and the settlement of disputes. The Committee hopes to be able to examine information showing that account has been taken of the concerns expressed by trade unions and organizations of indigenous peoples in the comments made in 2010 and that the right to land ownership and possession set out in Articles 13 and 14 of the Convention is recognized for indigenous peoples.

Natural resources. In its comments in 2010, the Committee requested the Government to take the necessary measures to align the national legislation with the Convention so that indigenous peoples are consulted on investment projects likely to affect them directly and so that they can participate in the benefits deriving from the exploitation of mineral resources. The Committee observed previously that the Mining Code, the Act on geothermal energy concessions and the Water Code do not contain provisions on the consultation of indigenous peoples concerning investment projects that involve concessions for use or development. The alternative report prepared by the Aymara people indicates that when the Convention was ratified there was no adjustment of sectoral legislation. The alternative report provided by CONAPACH describes specific cases in which there appears to be a loss of rights by the indigenous Atacameña, Quechua and Aymara communities over water resources in the river Loa and other water and geothermal resources in the north of the country. In the same way as CONAPACH, CONAPAN also refers to the negative impact of mining projects in Diaguita Huascoaltino territory and the establishment of water rights in Mapuche territories by hydroelectric companies, without a determination of whether the interests of indigenous peoples have been prejudiced. In the reply received in September 2011, the Government referred to the development of the consultation process on indigenous institutions. The Committee notes the further indications provided by the Government in September and October 2012 on the attempts made to develop new institutions and to formulate Regulations on the SEIA. The Committee once again recalls the need to give full effect to Article 15 of the Convention, which sets out the conditions for prior consultation procedures and for participation in benefits by the peoples concerned. The Committee once again requests the Government to amend the national legislation so as to ensure that indigenous peoples are consulted before any programme is undertaken or authorized for the prospection or exploitation of resources on their lands and are able to participate in the benefits deriving from the exploitation of natural resources. The Committee hopes to be able to examine specific information showing that the rights of indigenous peoples to natural resources have been safeguarded, as set out in the Convention.

Health. Education. Cross-border contacts and cooperation. The Committee notes the concern expressed by the Pelón Xaru Mapuche Nation Peoples Culture Centre on the need for greater government support so that machis (traditional Mapuche doctors) can carry out their work under optimal conditions. The urban Mapuche organizations also made calls for access to indigenous health and education. The alternative report of the Aymara people raises issues relating to the right to education and cross-border cooperation. In the same way as the other documentation provided by the CONAPAN, an ancestral Huilliche Mapuche organization emphasizes the need to ensure that persons exercising educational functions in the formal school context are trained in their indigenous communities. The Committee requests the Government to provide updated information in its report so that it can examine the manner in which progress has been made in the application of each of the provisions of Parts V, VI and VII of the Convention.