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Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Argentina (RATIFICATION: 2000)

Other comments on C169

Observation

Direct Request

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The Committee notes the observations of the General Confederation of Labour of the Argentine Republic (CGT-RA), received on 23 August 2022 and 1 September 2023), as well as the observations of the Confederation of Workers of Argentina (CTA), received on 26 July 2023.

Articles 2 and 33 of the Convention. Indigenous policy, indigenous participation and coordinated and systematic action. The Committee notes from the Government’s report that the National Action Plan on Human Rights (PNADH) 2017–20 aimed at increasing coordination between State institutions in order to safeguard the rights of indigenous communities and to elaborate implementing regulations for Act 24.071 of 1992 approving the ratification of the Convention. It notes the Government’s statement that the National Institute for Indigenous Affairs (INAI), besides playing an inter-institutional and inter-jurisdictional role, is also involved in coordinating non-State actors in the integrated and autonomous development of indigenous communities. In this connection, the INAI participates in the Inter-ministerial Round Table for Indigenous Peoples (MIMPI), which brings together the technical teams from various state units, with the provincial governments of Salta, Formosa, Chaco, Misiones, Neuquén and Tucumán, on a fortnightly basis. The INAI and the MIMPI have created space for provincial dialogue with indigenous communities in order to generate opportunities that encourage the integrated and autonomous growth of the communities (for example, promoting artisanal crafts, land cultivation, livestock farming and tourism). The Government emphasizes that this methodology has helped it to understand and analyse territorial and indigenous issues and has resulted in better provincial level policy coordination.

The Committee also notes that the INAI has entered into dialogue with the authorities on indigenous peoples’ issues or on human rights at provincial level, with a view to ensuring the application of shared principles and standards for the implementation of the Convention within the framework of federalism, taking into account the criteria set out in the Supreme Court decision of 10 December 2013. That judgement establishes that the provinces have sufficient regulatory authority over the rights of indigenous peoples, in so far as this does not imply any contradiction with or lowering of the standards laid down in federal laws or regulations. The Committee notes that the Supreme Court, in a new decision of 28 December 2021 (FRE1168/2015/CS1), reaffirmed this principle and further emphasized that under the Constitution, authority divided between the provinces and the nation in respect of the rights of indigenous peoples is the reflection of a balanced federal regime that is able to take account of the multiple and various local realities in indigenous matters.

Moreover, the Committee notes that Decree No. 672/16 established the Consultative and Participatory Council of the Indigenous People of the Argentine Republic as the instance for indigenous representation and intercultural dialogue under the aegis of Secretariat for Human Rights and Cultural Pluralism of the Ministry of Justice and Human Rights. The Council’s objectives include: (i) promotion of areas of interaction between the different ministries and public bodies; (ii) adoption of legislative measures for applying the Convention, including on prior consultation and indigenous community property; (iii) implementation of education and health programmes for indigenous peoples; and (iv) redefining indigenous policy with a view to ensuring the participation of the peoples concerned.

Recalling the importance of coordinated and systematic action as a basis to ensure the rights of indigenous peoples enshrined in the Convention, the Committee requests the Government to continue to adopt measures to ensure communication and coordination between the federal government and the different provincial governments in respect of implementation of the Convention for which responsibility lies with the provinces. It also requests the Government to: (i) continue to make efforts to adopt regulations for the implementation of Act No. 24.071; (ii) report on the measures and programmes proposed and adopted within the Inter-ministerial Round Table for Indigenous Peoples and their outcomes; and (iii) take the necessary measures to ensure the good functioning of the Council for Indigenous Participation, indicating how often it meets, how many peoples are represented and how it coordinates its action with the different government entities.

Article 3. Human rights. 1. Use of violence at protests. The Committee notes that the CGT-RA and the CTA report in their observations instances of violence and the excessive use of force by the police during indigenous peoples’ protests against the constitutional reform of Jujuy Province in 2023. It also observes that the Inter-American Commission on Human Rights (IACHR) referred to the scale of the provincial security forces’ response to those demonstrations which resulted in several injuries (IACHR press release of 20 June 2023). The Committee notes that the Government has not responded to the allegations of the CGT-RA and the CTA.

The Committee notes the alleged instances of violence with deep concern. The Committee recalls that indigenous and tribal peoples must be able to exercise the right to protest in defence of the rights enshrined in the Convention, without recourse to violence, and the Government must adopt appropriate measures to avoid any type of violence in this regard. Moreover, in the context of public demonstrations, the authorities must only make use of public force where the public order is genuinely threatened and intervention by the police must be proportionate to the threat to public order that it seeks to control. The Committee requests the Government to report on the outcomes of the investigations into the alleged facts and trusts that such investigations will make it possible to determine responsibilities and impose the appropriate penalties.

The Committee also notes that the United Nations Committee on the Elimination of all Forms of Racial Discrimination (CERD) in its 2023 concluding observations on Argentina expressed concern regarding: (i) the persistence of the practice of racial profiling by the police forces and other law enforcement officials in particular against persons belonging to indigenous peoples; and (ii) the numerous allegations of violence committed by the police and private security companies, including some that resulted in the death of the victim, which disproportionately impact on persons belonging to indigenous peoples (CERD/C/ARG/CO/24-26). The Committee requests the Government to take all necessary measures to ensure a climate free from physical and psychological violence in which indigenous peoples and their representatives may defend the rights guaranteed them under the Convention.

2. Indigenous women. The Committee notes from information provided by the Ministry of Culture, that the Ministry has launched a project entitled “Mujeres de Raíz” (Grass roots Women), which creates spaces for dialogue and support for indigenous women. This accompaniment seeks to fortify the nexus between indigenous women and their community, spreading information on public policies that benefit them and reinforcing their autonomy (Ministry of Culture press release of 5 September 2022).

However, the Committee notes with concern from the CERD concluding observations, that there are certain complaints of abuse and sexual violence suffered by women and girls and committed by Creole men, particularly in the north of the country, such as the case of the women and girls of the Wichí people in Salta. Furthermore, according to the same observations, in October 2022, seven women and six girls and boys of the Mapuche Lafken Winkul Mapu community in Villa Mascardi in the province of Rio Negro were detained incommunicado for at least 72 hours in the context of a violent entry and search raid (CERD/C/ARG/CO/24-26). Regarding the latter case, the Committee notes that according to information available on the website of the Public Prosecutor’s Office, the Federal Prosecutor’s Office of Bariloche is carrying out investigations in relation to the events that took place in Villa Mascardi. The Committee requests the Government to provide information on the results of these investigations.

Furthermore, the Committee urges the Government to adopt the necessary measures to ensure the physical and psychological integrity of the women and girls belonging to indigenous communities and, if applicable, to investigate the complaints of sexual violence against them committed.

Article 6. Consultation. In reply to the Committee’s previous comments regarding the absence of a regulatory framework for consultation, the Government indicates that it is in the process of regulating the right to prior consultation of indigenous communities and that a preliminary draft law will itself be subject to prior consultation among the indigenous communities of the country through a “consultation on the consultations” process. The Government points out that, while there are no regulations governing the holding of consultations, such consultations have nonetheless been held in the framework of productive and energy projects of national importance. INAI supported indigenous communities during those consultations in their dialogue with the provincial governments and the enterprises responsible for the projects. The Government adds that consultations have been convened by provincial governments, and these were governed by the regulations of the respective jurisdictions. In this connection, the government of Rio Negro province is working with the Indigenous Community Development Council and with the Coordinator of the Mapuche Parliament to formulate a protocol for consultations, and that Parliament is also consulting with the different communities in the province.

The Committee notes that the CGT-RA and the CTA maintain in their observations that the indigenous peoples of the province of Jujuy were not consulted in respect of the constitutional reform of the province, approved in June 2023. According to those organizations, the reform contains provisions which are contrary to the Convention, in particular:

section 36, which recognizes the right to private property and provides that its exercise shall not challenge the social function or be detrimental to health, safety, freedom or human dignity;
section 50, which provides that the province shall protect indigenous peoples through appropriate legislation that will lead to their integration, and economic and social progress;
section 68, which recognizes the full dominion and exclusive ownership of the province over the natural resources existing in its territory against any undue interference by the nation or other provinces, promoting the sustainable use of these resources and common goods for the benefit of human development and the progress of the population;
section 74, which provides that the State shall promote the investigation, development, production and use of knowledge and tools that apply biotechnology with a view to creating goods and services that improve the quality of life of persons;
section 94(2), which recognizes land as a labour and production good, and provides that the law shall regulate the administration, disposition and use of public land that may be put to productive use, establishing to that end development regimes that promote territorial development and the socioeconomic interest of the province.

In this regard, the Committee notes from an Opinion of the Attorney General issued on 4 August 2023 (CSJ 1309/2023), that the State filed a claim of unconstitutionality in respect of several provisions of the reformed constitution of Jujuy province, including section 94 cited above, on grounds of contravening Convention No. 169. In his Opinion, the Attorney General considers the Supreme Court competent to pronounce on such a claim. The Committee notes that the Government has not responded to the allegations. It therefore has no further information regarding the process of the Jujuy constitutional reform, or whether indigenous peoples are being consulted thereon.

The Committee also notes, from a reading of sections 36, 68, 74 and 94(2) of the reformed Jujuy constitution, that these sections clearly deal with general issues, rather than specific provisions on indigenous peoples or their rights. Nevertheless, the Committee considers that the implementation of the constitution, and of the regulations to be adopted for that purpose, must avoid directly affecting the rights of indigenous peoples recognized under the Convention, specifically in respect of property and land traditionally occupied by these peoples, and as such must be subject to consultation. In this regard, the Committee recalls that the consultation provided for in Article 6 of the Convention is a means of institutionalizing dialogue on questions that affect indigenous peoples, to ensure inclusive development processes, reduce tensions and prevent conflict. Consultations must be undertaken in good faith and allow full expression of the opinions of the peoples concerned, with a view to influencing the outcome of the measures under consultation.

Moreover, with specific reference to section 50 of the reformed constitution of Jujuy, which refers to the adoption of appropriate legislation that will lead to the integration and social and economic progress of indigenous peoples, the Committee wishes to recall that the objective of Convention No. 169 is to replace a focus based on integration with one based on the recognition of the right of indigenous peoples to decide on their own development priorities. Accordingly, this principle must be the basis of all provincial legislation adopted with regard to indigenous peoples.

Consequently, the Committee urges the Government to take the necessary measures to ensure:

the adoption of a national regulatory framework for consultation, announced by the Government, which must be subject to prior consultation with the indigenous peoples concerned;
that consultations under the competence of the provincial governments, as well as any provincial regulations adopted governing such consultations, are held in coordination with the INAI as the institution responsible for ensuring coordinated action in implementing the rights provided under the Convention.

With regard to the reformed constitution of the province of Jujuy, the Committee requests the Government to take the necessary measures to ensure that any law or regulation adopted to give effect to sections 36, 50, 68, 74 and 94(2) of that constitution, in so far as they directly affect the rights of indigenous peoples, are duly subject to consultations with the indigenous peoples of the province, in conformity with Article 6 of the Convention.

Article 14. Lands. In its previous comments, the Committee noted that Act No. 26.160 of 2006 declaring the emergency regarding the possession and ownership of land traditionally occupied by the indigenous communities entered in the National Register of Indigenous Communities. Act No. 26.160 provides for the suspension of rulings and administrative land eviction orders for an initial period of four years, during which the territorial survey and titling in the name of the communities can take place, under the coordination of the INAI. The Committee notes that this provision has been extended on several occasions due to non-completion of the survey and titling process.

The Committee notes the Government’s indication that, under Act No. 26.160 and its respective extensions, the territorial, legal, technical and cadastral survey of 479 communities, amounting to approximately 2,983,259 hectares has been completed (24 hectares in Buenos Aires, 2 in Catamarca, 14 in Chaco, 36 in Chubut, 6 in Córdoba, 2 in Entre Ríos, 1 in Formosa, 120 in Jujuy, 6 in La Pampa, 7 in Mendoza, 43 in Misiones, 6 in Neuquén, 51 in Río Negro, 52 in Salta, 5 in San Juan, 7 in Santa Cruz, 29 in Santa Fe, 54 in Santiago del Estero, 1 in Tierra de Fuego and 14 in Tucumán), 467 communities are in the process of being surveyed.

The Committee also notes that Act No. 26.160 was subject to a new extension until November 2023 under Decree 805/2021. The Government also indicates that, under the initiative of the INAI, consultations have taken place with the provinces and with the indigenous territorial organizations to draw up a preliminary draft of a law on community ownership. There are currently several draft laws under debate before the Legislature. Moreover, the Government indicates that the Executive has expressed its willingness to reach a federal agreement that will enable the State and the provinces to come to a consensus on the regulation of community ownership.

The Committee notes from the CGT-RA’s observations that the question of the regularization of indigenous lands remains an ongoing issue of concern which has given rise to instances of violence and the eviction of indigenous communities in Patagonia, as well as in the north-east and north-west of the country, which have yet to be clarified.

It also notes that, in its report on its visit to Argentina in 2023, the United Nations Working Group on business and human rights refers to: (i) the legal risk for indigenous communities arising from continuous extensions of Act No. 26.160; (ii) the slow pace of the territorial survey process in indigenous communities; (iii) complaints of violent evictions of indigenous communities to make way for large-scale real estate and resource extraction projects.

The Committee further notes the ruling of the Inter-American Court of Human Rights of 24 November 2020, in the case of the Indigenous Community Members of the Lhaka Honhat (our lands) Association vs. Argentina, in which the Court determines that Argentina does not have an adequate body of regulations in place to secure indigenous peoples’ right of community ownership satisfactorily.

The Committee notes with concern the apparent slow pace of the process of territorial survey and the titling of lands traditionally occupied by indigenous peoples, to which the continuous extensions of Act No. 26.160 bear witness. This has given rise to a context of legal uncertainty which imperils respect of the rights of ownership and possession of those peoples over their lands, as recognized under Article 14 of the Convention. Consequently, the Committee urges the Government to make every possible effort to complete the process of territorial survey and titling of the indigenous communities of the country provided under Act No. 26-160, in coordination with the INAI and the respective provincial governments. It requests the Government to provide updated information on progress made regarding the survey and regularization (identification, demarcation and titling) of community land by province; and while the process is ongoing, to take the necessary measures to establish mechanisms for the resolution of conflicts related to the occupation of the land between the indigenous peoples and third parties.

Articles 20 and 21. Admission to employment and training programmes. The Committee notes with interest that the National Plan for Indigenous Peoples: “Promote better jobs through integrated employment and training programmes” was adopted by the Ministry of Labour, Employment and Social Security, in March 2023. The Committee notes that the preparation of the plan involved consultations with the indigenous peoples in various provinces, as well as an analysis of the difficulties faced by those peoples in the labour market. Such difficulties included: (i) restricted access to employment and training opportunities due to the geographical distance separating the indigenous communities from the urban centres where the employment offices and training institutions are located; (ii) the institutions and local actors lack and understanding of cultural differences, resulting not only in a scarcity of offers, but also in persistent discriminatory attitudes towards the indigenous peoples; (iii) training and employment programmes poorly aligned with the specific needs of the indigenous communities; (iv) communication problems due to the predominant use, particularly among indigenous women, of indigenous languages; and (v) institutional weakness and poor access to technical assistance activities for indigenous communities. To overcome these challenges, the Plan includes actions to promote the inclusion of indigenous peoples, such as working with indigenous organizations to prepare vocational training proposals, taking account of the need to make entry conditions and requirements more flexible; strengthening employment offices in indigenous communities; and the provision of cash allowances to promote and maintain participation by highly vulnerable indigenous persons in vocational and employment training activities.

The Committee notes, according to the statistical information included in the Plan, that in the period from January 2015 to June 2021, a total of 4,731 indigenous persons took part in labour market integration programmes, 8,555 in vocational training activities and 899 in self-employment programmes. The Committee notes that a mandatory quota of 25 per cent indigenous participation was applied in respect of vocational training and employment programmes provided by the National Institute of Agricultural Technology.

The Committee requests the Government to continue providing information on the results of the measures implemented under the National Plan for Indigenous Peoples, giving examples of vocational training and labour market integration programmes formulated in cooperation with indigenous communities. It also requests the Government to provide, to the extent possible, updated statistical information on the number of persons belonging to indigenous peoples who are unemployed or under-employed.

The Committee is raising other matters in a request addressed directly to the Government.