Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

Other comments on C169

Observation

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The Committee notes the Government’s detailed report received in September 2013. In reply to the observations from the International Organisation of Employers (IOE), the Government indicates that the ratification of the Convention presents the challenge of reconciling the application of indigenous peoples’ right to be consulted with the productive development of the country, reducing the recourse to litigation with respect to investment projects. The contributions from the Confederation of Production and Commerce (CPC), the Mining Council, and the Chilean Wood Corporation (CORMA) express the hope that both the draft legislation on consultation of indigenous peoples and the Environmental Assessment Service Regulations (adopted by means of Decree No. 40 published in August 2013) will become tools for enhancing the legal certainty of investment projects in the country. Among other things, CORMA and the Mining Council underline the need for establishing a clear definition of representativeness of indigenous peoples in order to implement consultations. In this regard, the Committee notes the analysis sent in September 2013 by the Trade Union Federation of Araucanía relating to appeals for protection filed with the Appeals Court in the Ninth Region (the region with the largest indigenous population in the country), which are primarily concerned with the consultation and participation established by the terms of the Convention. According to the aforementioned Federation, the rulings analysed show that recourse to litigation is a tool that paralyses investment or trade projects for the duration of the non-innovation order pending the outcome of the proceedings in the Supreme Court. The suspension of the project may last at least a year and cause investors to have misgivings. The Committee invites the Government, when preparing its next report, to continue communicating with the representative employers’ and workers’ organizations and consult indigenous peoples’ organizations in the country on the measures taken to give effect to the Convention (Parts VII and VIII of the report form). The Government is also invited to include court decisions and documents on pending litigation covering matters relating to the application of the Convention (Part V of the report form).

Consultation. New legislation. The Government indicates that, between March 2011 and July 2013, dialogue mechanisms were established with representatives of the indigenous peoples with a view to achieving consensus on new legislation concerning consultation and participation. The Committee notes the detailed information on the operation of the Roundtable on Consensus in which the United Nations and the National Human Rights Institute (INDH) were observers. The Government drew the Roundtable’s attention to the illustrative report of the INDH “observation mission” of August 2013 concerning the process, content and decisions of the Roundtable on Consensus. The Committee on Consensus held meetings between March and July 2013 and its work culminated in the signature of a protocol setting forth the agreements reached on 17 sections of the draft. The Government indicates that no agreement was reached on the definitions of “directly affected” or on the measures requiring consultation. The Committee notes that the President of the Republic signed Supreme Decree No. 66 on 15 November 2013, thereby approving the regulation “on the indigenous consultation procedure” pursuant to Article 6(1)(a) and (2) of the Convention. In response to the request made by indigenous organizations, Supreme Decree No. 124 of 2009 will be abrogated once the new regulation enters into force. The Committee requests the Government to provide information to the Office on the entry into force of the new regulation on consultation. The Committee requests the Government to provide information in its next report that will enable it to examine the manner in which the new legislative text ensures the effective consultation of indigenous peoples in all measures which may affect them directly and gives full effect to the corresponding provisions of Articles 6, 15 and 16 of the Convention.

Article 7. Participation. The Government indicates that it intends to submit proposals to Congress for the establishment of an indigenous peoples’ council that represents indigenous peoples at the national level and performs an advisory role in the formulation of policies that affect the peoples concerned. In the dialogue between the indigenous peoples and the Government aimed at reaching consensus on new legislation relating to consultation, it was decided not to adopt regulations on participation. The Committee recalls that the Convention refers to active participation by indigenous peoples, which includes submitting initiatives and proposals for measures, programmes and activities that shape their development and enable them to decide their own priorities [see the Handbook for ILO Tripartite Constituents on the Convention, published by the ILO in 2013, page 19]. The Committee invites the Government to include in its next report information on how it has been ensured that indigenous peoples participate effectively in decisions that may affect them directly and that full effect is given to the corresponding provisions of Articles 6, 7, 15 and 16 of the Convention.

Lands. The Government states that, through the 13th land tender in 2012, more than 3,300 hectares of land were purchased and handed over in 2012–13 to 605 families who met the criteria relating to vulnerability and social risk. The Government indicates that each handover of land is accompanied by an agreement providing productive and technical assistance. The Committee recalls that in its previous comments it had observed difficulties in the regularization of property rights claimed by indigenous peoples. 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 provide detailed information in its next report on the compliance with the Convention of the procedures for the regularization of land titles 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.

In a direct request, the Committee requests the Government to include information in its next report on other matters related to the self-identification of indigenous peoples, the consultation procedures which have been established in the regulations concerning the Environmental Impact Assessment System (SEIA), natural resources and progress achieved in health and education.

[The Government is asked to reply in detail to the present comments in 2015.]