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

Other comments on C169

Observation

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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.

Article 1 of the Convention. Peoples covered by the Convention. The Committee notes that, in accordance with information provided by the National Institute of Indigenous Affairs (INAI) sent by the Government with its report, the country has more than 1,600 indigenous communities formally identified on the basis of their inclusion in the National Register of Indigenous Communities (RENACI) or in provincial registries, as well as by their inclusion in the territorial survey programme. The Committee also notes that, according to the information from the National Statistics and Census Institute, that in 2022, a new census of the population was held, the results of which have not yet been published. In the previous census of 2010, the indigenous population stood at 955,032 individuals on the basis of self-identification.

The Committee notes that the CGT RA refers in its observations to difficulties still encountered by unregistered indigenous communities to obtain legal personality before the RENACI. In this regard, the Government indicates that Decision No. 4811/96 handed down by the ex-Secretariat for Social Development in the Office of the President established the requirements for obtaining legal personality, which are: (i) information on the name and geographical location of the community; (ii) an account indicating ethnic, cultural and historical origins of the community, with available documentation; (iii) a description of their organizational rules and bodies, and the renewal of their authorities; and (iv) a list of community members with their degrees of kinship, and of the mechanisms for integrating or excluding community members. In conformity with section 4 of the Decision, the RENACI is to conclude agreements with the provincial governments to harmonize the criteria for the registration and recognition of indigenous communities.

The Committee also notes that the Government indicates that the process of obtaining legal personality as an indigenous community is less arduous than that of constituting a civil association. Such personality gives beneficiaries access to State plans and programmes. The Government also clarifies that the recognition of the indigenous communities through registration with the RENACI is declaratory and not constitutive act, given that the existence of the indigenous communities is not a consequence of, but pre-existing to, registration.

However, the Committee notes the Decision No. 1390 of 30 March 2023, adopted by the Chamber of Deputies of Mendoza province, which states that for scientific, historical and anthropological reasons, the Mapuche should not be considered to be indigenous people of Argentina within the meaning of section 75(17) of the National Constitution and international treaties. In this regard, the Committee wishes to recall that Article 1 of the Convention establishes the criteria for determining the peoples covered by the instrument. Thus, according to Article 1(1)(b), the Convention applies to peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. Article 1(2) establishes that self-identification as indigenous shall be regarded as a fundamental criterion for determining the groups to which the provisions of the Convention apply.

The Committee also recalls that in its previous comment, it noted the Supreme Court ruling of 10 December 2013 in which the Court referred to self-awareness (peoples’ awareness of their indigenous identity) as a subjective criterion for the identification of indigenous peoples. It further notes from information available on the website of the Ministry of Culture, that the Mapuche people are present and registered in the RENACI.

Therefore, the Committee requests the Government to provide information on:

the measures adopted to assist the indigenous communities that are still not registered with the National Register of Indigenous Communities to obtain legal personality, indicating the number of registrations that are in process, and how many have been refused;
the agreements concluded between the RENACI and provincial governments to harmonize the criteria for the registration and recognition of the indigenous communities;
the effect of Decision No. 1390 of 30 March 2023, adopted by the Chamber of Deputies of Mendoza on the recognition of the Mapuche people in Mendoza as a people covered by the Convention and enjoying its rights; and
the present number of individuals who identify as indigenous according to the latest census of 2022, if possible disaggregated by province and the people to which they belong.

Article 20. Conditions of employment and inspection. The Committee notes the absence of information in the Government’s report on the activities of the labour inspection services in sectors in which indigenous workers are occupied. It notes that in its observations, the CGT RA refers to worrying occupational safety conditions for workers coming from indigenous communities, the majority of whom work in the informal economy. The Committee refers to its comments under the Convention on Labour Inspection (Agriculture), 1969 (No. 129) and again requests the Government to report on the work of the labour inspection services in rural areas of the provinces with larger indigenous populations, indicating whether, in the context of their inspection visits, they have detected violations of the rights of indigenous workers and, if so, the penalties imposed.

Article 24. Access to social security. The Committee notes that the Government has been providing national identity documents to members of the indigenous communities to allow them access to social benefits and programmes, such as allowances distributed to vulnerable persons for food and housing. Moreover, decrees have been adopted to enable persons belonging to indigenous peoples, irrespective of their age, to register with the National Registry Office with the support of the INAI. The National Social Security Administration (ANSES) conducted visits in the indigenous communities of Salta, Chaco, Jujuy, Formosa, Misiones, Santiago del Estero, Neuquén, Chubut, Catamarca, La Rioja, Río Negro, Mendoza, Santa Fe, San Juan y Tucumán to assist indigenous community members with regard to the issuance of identity documents and access to universal child allowance programmes, disability pensions and productive projects for self-development. The Committee encourages the Government to continue to adopt measures to ensure that all persons belonging to indigenous peoples have an identity document allowing them access to social security programmes that answer to their needs. In this regard, the Committee requests the Government to provide information on the number of indigenous persons that have benefitted from these measures, and on the type of social benefits to which they have access.

Article 25. Health. The Committee notes that the Government reports on the establishment, in July 2016, of the National Health Programme for Indigenous Peoples (Ministerial Decision No. 1036-E/2016). The Programme is intended to deal with specific health problems affecting the indigenous population from an intercultural perspective and includes consultations with the indigenous communities on measures related to community health. Among its objectives, the Programme includes: (i) reducing inequalities as regards the state of health; (ii) reducing morbidity in the indigenous population by reinforcing preventive health care; and (iii) training indigenous community members to make use public health services that accept interculturality. The Government adds that, under the Programme, agreements have been signed with the provinces to train indigenous health officials chosen by the communities through a consultation process.

The Committee welcomes this measure, which is intended to improve access to health care for indigenous peoples by means of strengthening the community health system and collaborating with the groups concerned. The Committee encourages the Government to continue to pursue the adoption of measures of this type and requests it to continue to provide information on the results of the National Health Programme for Indigenous Peoples, and on any evaluation of the health needs of those peoples. It also requests the Government to provide information on the consultation processes undertaken with the indigenous peoples in this regard.