REPRESENTATION (article 24) - ARGENTINA - C169 - 2008

Education Workers Union of Río Negro (UNTER), local section affiliated to the Confederation of Education Workers of Argentina (CTERA)

Closed

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Report of the Committee set up to examine the representation alleging non-observance by Argentina of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Education Workers Union of Río Negro (UNTER), local section affiliated to the Confederation of Education Workers of Argentina (CTERA)

Report of the Committee set up to examine the representation alleging non-observance by Argentina of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Education Workers Union of Río Negro (UNTER), local section affiliated to the Confederation of Education Workers of Argentina (CTERA)

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

I. Introduction
1. In a communication dated 16 August 2006, the Education Workers Union of Río Negro (UNTER) made a representation to the International Labour Office under article 24 of the ILO Constitution alleging that the Government of Argentina has failed to observe certain provisions of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).
2. The Indigenous and Tribal Peoples Convention, 1989 (No. 169), was ratified by Argentina on 3 July 2000 and is in force in that country.
3. The following provisions of the ILO Constitution relate to the representations procedure:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The representations procedure is governed by the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the ILO Constitution, as revised by the Governing Body at its 291st Session (November 2004).
5. In accordance with articles 1 and 2, paragraph 1, of the above Standing Orders, the Director-General acknowledged receipt of the communication, informed the Government of Argentina thereof and brought the matter before the Officers of the Governing Body.
6. At its 297th Session (November 2006), the Governing Body, on the recommendation of its Officers, decided that the representation made by UNTER was receivable and appointed the members of the Committee set up to examine it, namely, Mr Rodrigo Estrela de Carvalho (Government member, Brazil), Mr Jorge A. De Regil (Employer member, Mexico) and Mr Julio Roberto Gómez Esguerra (Worker member, Colombia).
7. In a communication dated 22 December 2006, the Office invited the Government to send its observations concerning the representation.
8. In a communication dated 28 March 2007, the Office received additional information submitted by UNTER, which was sent to the Government on 30 March 2007. In a communication dated 29 May 2007, the Office acknowledged receipt of the Government s observations concerning the two communications from UNTER.
9. The Committee met and adopted the present report on 12 November 2008.
II. Examination of the representation
A. Allegations
10. The Committee notes that the representation refers to issues of consultation, representativeness at the national level and in the Province of Río Negro, lands, and discrimination in the performance of traditional activities in the Province of Río Negro relating to the Mapuche people. To examine this representation effectively, the Committee has organized the information provided under a number of headings.
Consultation regarding legislative measures at the national level
11. UNTER alleges that in 2005, two draft bills were submitted to the National Congress the Emergency Community Property Act and the Act on the Procedures for the Regularization of Community Property to deal with the evictions of indigenous communities from their traditional territories. These bills were not subject to an appropriate consultation process in accordance with Convention No. 169. The consultation involved a meeting on 12 May 2005 in the National Congress in Buenos Aires; the organizations of indigenous peoples were invited by email to attend at their own expense. The complainant adds that the draft bills in question expired.
12. UNTER lists a number of bills which were submitted to the Senate or to the Chamber of Deputies without due regard to the right to consultation and participation. These were the following: (1) File No. 1045/06, Bill amending the Mining Code with regard to the participation of indigenous communities; (2) File No. 1599/06, Bill declaring a state of emergency across the entire national territory with regard to indigenous community property; (3) File No. 1839/04, Bill establishing the intellectual property rights of indigenous peoples; (4) File No. 1855/06, Bill to regulate relations between the authorities of the national and federal judicial systems and those of indigenous peoples; (5) File No. 2228/04, Bill creating the system of indigenous consultation; (6) File No. 2368/05, Bill establishing penal mediation as an alternative form of resolving conflicts arising from the penal system; (7) File No. 1803-D-2006, Indigenous Community Property Regime: Emergency and Regulation, repeal of sections 2, 4, 7, 11 and 12 of Act No. 23.302; and (8) File No. 2777-D-2005, Indigenous Communities Regime.
13. The complainant adds that there is a lack of coordinated and systematic action to promote consultation and participation. Moreover, when the Council for Indigenous Participation (CPI) was established, several indigenous communities were not invited to take part in the election of representatives in the Provinces of Río Negro, (Endnote_1) Salta (Endnote_2) and Misiones. It maintains that the Council for the Development of Indigenous Communities (CODECI) of Río Negro, which operates under the Ministry of the Interior, is aware of the existence of communities of Río Negro that were not invited to participate in the elections held to appoint the members of the CPI, given that almost all of them had submitted a request to this body for recognition of their territories.
Province of Río Negro: Consultation regarding legislative and administrative measures and issues of representativeness
14. The complainant questions the procedure used by the provincial executive authority in adopting Decree No. 967/04, which puts a value on public lands and would be applied to any persons who settled on such land, without first determining the ownership rights that might be claimed by indigenous people already occupying the land in question.
15. UNTER states that, although the measure affects the direct and core interests of the Mapuche communities, Lof indigenous associations and inhabitants, the Government did not inform their representative bodies or those affected directly. Moreover, the indigenous peoples were not invited to participate and no consultation mechanism was implemented.
16. UNTER also questions the signing of Agreement No. 156/1 of 2000 between the National Institute for Indigenous Affairs (INAI) and CODECI establishing a mechanism for the registration, modification and withdrawal of the legal personalities of the province s indigenous communities.
17. It states furthermore that an agreement was concluded on 2 November 2005 between the Ministry of Production of Río Negro Province and the Mayor of El Bolsón (a town located in the south-west of the province) on the regularization of public lands, which was validated by Provincial Decree No. 1651; the communities and inhabitants concerned became aware of this through the press.
18. Background. In its account of the background, the complainant states that the Consolidated Indigenous Peoples Act, No. 2287, of 3 June 1988, is in force in the Province of Río Negro. This Act was drawn up in consultation with the indigenous peoples and provides adequate protection but is not applied. The complainant states that section 7 of the Act appoints CODECI as the body responsible for the implementation of the Act, with an advisory and decision-making role. CODECI was created on 6 April 1998 by Decree No. 310/98. Section 4 of the Decree provides that CODECI acts under the Ministry of the Interior as a joint government indigenous community forum for defining policies to be implemented.
19. The complainant states that the Mapuche members of CODECI are elected by the Coordinadora del Parlamento Mapuche (Coordinating Committee of the Mapuche Parliament), a body consisting of representatives of various Mapuche organizations in the province. It states that section 2 of Decree No. 310/98 recognizes it as a representative body consisting of all the organizations of the Mapuche people.
20. Indigenous Advisory Board (CAI). The complainant alleges that not all provincial Mapuche communities and organizations are represented on the Coordinating Committee; that is the case with the CAI. It states that the CAI is a political organization which since 1986 has been bringing together Mapuche communities, Lof and settlers in Río Negro Province. Its main objective is to recover the territories, history and culture of the Mapuche people with a view to strengthening their independent political, social and cultural development. The complainant states that the CAI withdrew from the Coordinating Committee because it considered the latter s decisions and practices to be inconsistent with its own aspirations. It maintains that the state authorities not only deem the CAI to be not truly representative of the interests of the Mapuche people, but they also constantly endeavour to discredit it and obstruct its activities.
21. With regard to the provincial executive authority, the complainant states that it only consults with CODECI, to the exclusion of other representative organizations of the Mapuche people. In its additional observations, the complainant refers to the national Emergency Act No. 26.160, which for a period of four years suspends the evictions of the country s indigenous communities and provides for the regularization of the lands traditionally occupied by them. The complainant requests that provision be made for bodies in which the implementation of the Emergency Act can be opened up to dialogue with the representative organizations of the province s Mapuche people and in which those affected directly can participate and discuss matters thoroughly and in full knowledge of the facts they need to give their consent, which must be free, prior and informed consent .
22. The complainant maintains that CODECI has illegally renounced its mandate and delegated it to the Land Directorate for Río Negro Province, which is responsible for implementing Public Lands Act No. 279, and that the Directorate does not take into account the rights laid down in Convention No. 169 when adopting measures and taking decisions. It repeatedly asserts that CODECI fails to defend the rights of the indigenous peoples of Río Negro Province by forcing them to obtain temporary titles as fiscaleros (occupants of public land), rather than allowing them to use those applicable to them as indigenous peoples. It accuses CODECI of failing to take action against evictions, and states that some CODECI lawyers have even charged a fee for private services to members of indigenous communities who have requested assistance from CODECI to defend their rights. It requests that the CAI be involved in the consultation and participation provided for by Convention No. 169.
Province of Río Negro: Rights of the Mapuche communities (Lof) to lands which they traditionally occupy
23. Background. The complainant states that of the 5 million hectares declared by the Province of Río Negro to be public land, an estimated 75 per cent are traditionally occupied by members of the Mapuche people with the right to possession and ownership of these lands. That does not include the private properties to which this also applies, many of which could be expropriated under section 13 of the Consolidated Indigenous Peoples Act No. 2287. The complainant states that, according to this provision, in cases of major or subjective loss, usurpation or other irregular possession and/or acquisition of ownership to the detriment of indigenous inhabitants and/or communities concerned, application must be made to the state prosecutor to initiate the necessary judicial or administrative action to return the lands to their rightful owners.
24. The complainant also alleges that according to the Government, Public Lands Act No. 279 (ordinary law) is applicable across the entire territory concerned, thereby avoiding the implementation of legislation applicable to traditionally occupied lands. The complainant states that this Act covers public lands and that its 1961 version contains no provisions regarding traditional territories or the participation of indigenous peoples. It states that in the majority of cases, the Mapuche people traditionally occupying public lands have no title to those lands and the occupants are regarded as intruders. In many cases, traditionally occupied lands have not even been identified and recorded. In other cases, the Mapuche families or Lof have only been granted temporary occupancy permits, which means that the Government may sell, let, exploit or award these lands without having to expropriate or compensate their occupants. It is claimed that the implementation of the relevant legislation, that which protects the rights of indigenous peoples, poses a considerable threat to the traditional system of landownership in the province and to many landowners and traders who previously stripped the Mapuche people of their lands through various fraudulent manoeuvres endorsed by the provincial government. It maintains that the plan for the Province of Río Negro is to restrict recognition to communities which have already been recognized as reserves by previous laws with the backing of CODECI.
25. Act of Agreement on the inviolability of public lands of 1998. The complainant refers to the alleged violation of the Act of Agreement on the inviolability of public lands, signed in 1998 by the national Government represented by INAI, the provincial government and the Coordinating Committee of the Mapuche Parliament. The Act of Agreement defined as critical a number of areas of the province on which there are Mapuche settlements whose community lands are under threat. According to the complainant, the provincial government in this legislation undertook not to endorse any purchase or sale transaction or demarcation measure until the status of the lands including the legal and registration aspects had been clarified, given that a series of irregularities to the detriment of the indigenous peoples are presumed to have occurred. It is alleged that the Government of Río Negro, through the Provincial Land Directorate, has coerced the Mapuche inhabitants of the rural areas into complying with the provincial legislation on public lands (Act No. 279), renouncing their ancestral rights to lands traditionally occupied by them or claimed as such. The complainant further states that Act No. 2287 referred to above provides for specific procedures for determining the rights to lands claimed by the Mapuche people but that the procedures were never implemented; that no provincial body has declared itself competent to process land claims; and that no deeds of ownership have been granted to the Mapuche people with respect to the lands traditionally occupied by them.
26. The complainant states that Provincial Decree No. 967/04 of 23 August 2004 updates the grazing fees payable by temporary occupants, many of whom are Mapuche, putting the Mapuche on an equal footing with fiscaleros. It states that since the adoption of that Decree, the Provincial Land Directorate has embarked on a policy of putting pressure on the Mapuche occupants to update their grazing fees, requiring them to measure and purchase the land for which they are responsible or risk losing their occupancy rights. One example cited is that of the members of the Mapuche community of Río Chico Abajo, which has been granted legal personality by the INAI, who received notices of arrears of grazing fees and demands for the renewal of temporary occupancy permits applicable specifically to fiscaleros. The complainant states that, as no response was forthcoming from CODECI, the members of the community applied to several bodies including the INAI, which was the only body to reply, and to the Land Directorate for the Province of Río Negro, requesting the suspension of the claim made in the form of a levy for land use applicable to members of indigenous communities that recognize themselves as such , and that according to the INAI, the delay in giving effect to the said proposal, attributable to provincial state bodies CODECI must not adversely affect the communities and their members whose lands have not been regularized .
27. Legal personality: Scope. The complainant states that Agreement No. 156/1, signed in 2000 between the INAI and CODECI, defines the persons covered by imposing objective requirements which not all Mapuche inhabitants of the province are able to fulfil owing to the particular historical circumstances that have gone into determining their present situation. It adds that the CODECI document which provides information on the procedure for obtaining legal personality specifies that its target population is made up of the indigenous communities defined as family groups which satisfy conditions such as living in a shared environment and acting as a collective unit , excluding extended or nuclear families. The complainant raises the question of the fate of families obliged to move on as a result of being evicted from their land, and states that Act No. 2287 recognizes as beneficiaries not only communities living close together but also those that are dispersed over a wider area.
28. Legal personality: Procedure. The complainant states that the procedure for obtaining legal personality is intricate, complex and inaccessible, and includes a series of obligations which fail to take into account the reality, customs and traditions of communities and their members, and that this prevents the most vulnerable communities and Lof from completing the process. It claims that this procedure violates Article 5(c) of Convention No. 169, which provides that, in applying its provisions, policies aimed at mitigating the difficulties experienced by these peoples in facing new conditions of life and work shall be adopted, with the participation and co-operation of the peoples affected . The complainant considers that the claim made in the document referred to in the previous paragraph, that this process will ultimately allow registered communities to apply for land , is an affront to the thousands of rural inhabitants traditionally occupying lands in the province.
29. According to UNTER, there is a state of induced confusion surrounding the powers of the various provincial bodies relating to the land rights of indigenous peoples. For example, on 14 April 2003, CODECI issued Provision No. 13/03 recognizing the community territory of the Lof Casiano and its right to claim and defend it against third party intrusion. The Ministry of the Interior, however, repealed this provision by enacting Resolution No. 3892 of 8 November 2004, on the grounds that nothing in Act No. 2287 and Decree No. 310/98 gives CODECI the authority to issue administrative acts of this kind recognizing rights to lands in dispute . Moreover, in the case Sede, Alfredo and others v. Vila, Herminia and others/eviction , File No. 14012-238-99 of 12 August 2004, it was ruled that the parties should first apply to CODECI to exhaust all possible administrative remedies before seeking judicial review. The complainant concludes that amid this confusion, it is impossible for Mapuche settlers and communities in Río Negro Province to exercise their legitimate rights when the Government and its agencies grant themselves powers or abdicate responsibilities without reference to the applicable legislation and in violation of the principle of legality governing administrative proceedings.
30. According to the complainant, up to the point at which the representation was submitted, the Province of Río Negro had not recognized the rights of ownership and possession of any community, Lof or settlers over the lands which they traditionally occupy, no measures had been established to identify such occupancy, no adequate mechanisms had been established to resolve claims that might arise, and no measures had been introduced to prevent eviction entailing subjective loss, despite the numerous proceedings initiated by various communities and despite the reports made of imminent evictions or danger. The following cases involving Lof associations within the CAI are cited: (1) Lof Villar-Cayumán; (2) Lof Antual Albornoz; (3) Kom Kiñe Mú Mapuche community (KKM); (4) Lof Pedraza-Melivilo; (5) Lof Mariano Epulef; and (6) Lof Casiano-Epugmer. With regard to the Lof Villar-Cayumán, the complainant states that since January 2004, a family of traders have been encroaching on their traditional territory and are attempting to evict them through threats endorsed by the Land Directorate, which issued the family with a certificate granting them the status of peaceful occupant with the right to buy and describing the indigenous population, which has occupied these lands for many years, as usurpers. The complainant notes that the recognition of and granting title to their traditional territory is crucial if the Lof Villar-Cayumán are to defend themselves in court against the eviction proceedings initiated by that family, even though the family have no title. In the case of the Lof Antual Albornoz, the complainant cites two parallel and contradictory cases being dealt with by the Land Directorate, one relating to community property and another relating to fiscaleros. With regard to the Kom Kiñe Mú Mapuche community (KKM), it has since the end of the nineteenth century occupied an area of approximately 11,000 hectares in Paraje Arroyo las Minas, in the area of influence of the right bank of the River Chubut. The complainant states that this community has been a victim of legal harassment by a family of traders and landowners and refers to seven court cases against the community, some for usurpation. Moreover, the complainant also states that the Land Directorate of the Province of Río Negro applied Act No. 279 on public lands to the Lof Mapuche Pedraza Melivillo case. According to the Act, eviction orders are not subject to administrative appeal and that the only possible defence against being deemed to be an intruder is possession of one of the following titles: temporary occupancy permit; lease; award of sale. The Committee has not set out all the cases referred to by the complainant, but rather has selected a number to serve as examples.
31. In its additional information, the complainant emphasized that Emergency Act No. 26.160 protects only indigenous communities with registered legal personality or pre-existing communities. The Act does not support claims from dispersed indigenous settlers living in rural areas, and disregards the fact that this dispersal is the result of the ethnocide policies implemented by the army during the desert campaign and that the indigenous peoples should not be penalized for their dispersal, which has resulted from a policy of which they have been the victims.
32. The complainant requests the establishment of bodies in which the implementation of the Emergency Act can be discussed with the representative organizations of the Mapuche people of the province.
Marks and signs certificates
33. The complainant states that the Government is violating Article 20, paragraph 2, and Article 23, of Convention No. 169 through indirect discrimination by seeking to apply uniform legislation on processing marks and signs with regard to stockbreeders in the Province of Río Negro who carry on traditional occupations; as a result, Mapuche stockbreeders are systematically excluded from obtaining marks and signs certificates. The complainant emphasizes that the breeding of small livestock is the basis of the Mapuche people s livelihood and is carried out at the community level; it can thus be viewed as the traditional activity of the people concerned. The certificate is a deed of ownership of large or small livestock and thus the document required in order to be able to breed, produce and trade livestock products (wool, meat, leather).
34. The complainant indicates that Provincial Act No. 1645 on marks and signs establishes that, in order to be granted a title (certificate), the applicant has to prove that he or she is the owner, tenant or legal occupier of rural property, while implementing Decree No. 1888/1983 allows members of indigenous communities to obtain such a certificate by submitting certification of their membership of an indigenous group issued by their chief . The complainant points out, however, that members of the native communities of the province are not required to submit any proof of ownership, lease or temporary permit granted by the Land Directorate of the Province of Río Negro. The complainant states that, in April 2004, the members of three Mapuche Lof communities applied for signs certificates at the Departmental Directorate of Livestock Activities of the Stockbreeding Directorate in Ingeniero Jacobacci. At the time the present representation was submitted, they had not yet received a reply. On 12 April 2005, the provincial Director of Stockbreeding informed the Lof that opinions Nos 588, 589 and 509/04 of his legal adviser prevented him from issuing the titles. The complainant indicates that they were expressly required to submit a title issued by the Land Directorate.
35. The complainant adds that the law allows only one certificate to be issued per person, to the person who holds the land title, which does not make any allowance for the community life of the Mapuche communities. It is claimed that this situation forces the Mapuche to apply for temporary occupancy permits from the Land Directorate, renouncing their rights as indigenous people. In addition, as the permits are individual, the system contributes to the disintegration of the community life and territories of the Mapuche. Holding certificates allows them to produce food, and without certificates they cannot transport or sell the products that form the basis of their subsistence economy. Furthermore, as the livestock is unmarked, it cannot be identified as belonging to its owner. The failure of civil servants to issue certificates places Mapuche stockbreeders in a situation of forced illegality . Another consequence is that young people are driven to the poorer areas of the cities because they are unable to continue pursuing their traditional subsistence activities.
B. The Government s observations
Consultation regarding legislative measures at the national level
36. The Government indicates that the draft bills which, according to the complainant, were not subject to the appropriate consultation process, were combined to form Act No. 26.160 of 1 November 2006 which, among other things, declared an emergency regarding the possession and ownership of the land traditionally occupied by the indigenous communities, suspended all evictions of indigenous communities, and ordered a technical, legal and cadastral survey of the status of the land occupied by the indigenous communities with a view to regularizing the land. The Government states that in drafting this law special care was taken with regard to consultation and participation, and goes into detail on these aspects after the following clarifications regarding Act No. 26.160.
37. The Government indicates that, by virtue of this Act, the length of the emergency was fixed at four years and the time limit for carrying out the survey was set at three years; to that effect, a special fund of 30 million pesos was made available. This fund can be used for: (a) the technical, legal and cadastral survey of the lands which are traditionally, currently and publicly occupied by the indigenous communities; (b) work associated with judicial and extrajudicial proceedings; and (c) land regularization programmes.
38. The Government indicates that the authority responsible for applying Act No. 26.160 is the INAI and that the planned survey demonstrates the State s commitment to fulfilling its obligations under Convention No. 169. According to Article 14, paragraph 2, of that Convention, governments that have ratified the Convention are required to take steps where necessary to identify the lands which the peoples concerned traditionally occupy.
39. Consultation and participation. The Government emphasizes that in the process through which the draft Act No. 26.160 had to pass, particular attention was given to the participation of the indigenous peoples. It points out that national Act No. 23.302 of 12 November 1985 concerning indigenous policy and support for aboriginal communities, which established the INAI as a decentralized body involving the participation of indigenous peoples, provides for the establishment of a Coordinating Council within the INAI. In accordance with section 5 of Act No. 23.302, the Coordinating Council is composed of the following: (a) a representative of the Ministry of the Interior; (b) a representative of the Ministry of the Economy; (c) a representative of the Ministry of Labour; (d) a representative of the Ministry of Education and Justice; (e) representatives elected by the aboriginal communities, the number of such representatives, specific requirements and electoral procedures being determined by the regulations; and (f) a representative of each of the provinces that has adhered to the Act.
40. Council for Indigenous Participation (CPI). The Government states that, with a view to consulting the peoples concerned, in accordance with Article 6 of the Convention, and as a step prior to establishing the Coordinating Council, Resolutions Nos 152/2004 and 301/04 were passed to promote the establishment of the CPI to represent the indigenous peoples in the Coordinating Council. The Council is composed of representatives of each of the indigenous peoples from all the Argentine provinces. The Government indicates that the representatives of the indigenous peoples were elected in 2005 and 2006 in provincial meetings of representatives of the communities of each people.
41. The Government states that, because of the method used, those appointed were truly representative of the communities. Section 1 of Resolution No. 301/04 of the INAI provides that the election of the members of the CPI shall be carried out by the representatives of the indigenous communities that have registered their legal personality in a timely fashion in the corresponding provincial register or in the national register of indigenous communities established within this institute. Furthermore, during the relevant meetings, the authorities of the registered communities may, by a decision of the meeting, agree to allow the participation of the authorities of the communities that are not yet registered . The Government states that the call to establish the CPI of the INAI was directed at the communities, which are the true and sole subjects of rights under article 75, paragraph 17, of the Constitution. The Government lists, for each of the peoples and provinces concerned, the individuals who were elected members of the CPI.
42. The Government states that Act No. 26.160 was discussed by the National Congress and, throughout the process, special care was taken to ensure indigenous participation. On 1 June 2006, at its first plenary meeting in Chapadmalal, the CPI announced its support for the Bill. It states that the representatives of the CPI have also expressed their views directly to legislators in committee meetings.
43. Consultation with regard to implementation. The Government maintains that the regional meetings of the CPI (in the north-east, north-west and south of Argentina) have discussed ways of implementing the Act. It adds that indigenous participation in implementing the Act is essential and that the methodology and measures adopted to implement the Act are always agreed with the CPI. The Government concludes that at the national level indigenous participation is ensured through the CPI, which supported the Emergency Bill, participated in and promoted the approval process, and currently participates actively in planning activities to implement the Act. It indicates that in the case of the Province of Río Negro, the election of CPI representatives took place on 9 April 2005 under the auspices of the Parliament of the Mapuche people in the City of Ingeniero Jacobacci in the presence of representatives from 40 communities. Furthermore, it attaches a document signed by the Executive Secretary of the Mapuche Parliament providing information on the election and the communities that participated. (Endnote_3)
Province of Río Negro: Consultation on legislative and administrative measures and issues of representativeness
44. The Government states that it is necessary to clarify the position of the CAI, which it believes is behind this representation, and to clarify the nature of CODECI. It maintains that only by understanding the nature of CODECI and the CAI will it be possible to place this representation in its context.
45. CODECI. The Government states that CODECI was created as the body responsible for implementing the Consolidated Indigenous Peoples Act No. 2287 of 1988, which established CODECI as a joint management body comprising representatives of indigenous communities and the Government of Río Negro Province. It adds that, at present, CODECI comprises four indigenous advisers and two government advisers, and has a body of legal advisers responsible for advising and submitting administrative claims to the Land Directorate of Río Negro Province. Furthermore, it considers that CODECI, in the context of Act No. 2287, fulfils the function of a representative body under the terms of Article 12 of Convention No. 169, and has initiated several legal proceedings as the natural and necessary representative of indigenous communities and settlers.
46. CAI. The Government adds that section 6 of the aforementioned Act recognizes the existence of the CAI with its headquarters in Ingeniero Jacobacci, and stipulates that it is to be composed of representatives elected by indigenous communities and by rural and urban associations in the province, and that it will undertake joint action with the provincial government. It states that on 17 November 1997, the CAI and the other indigenous organizations, centres and communities in the Province of Río Negro set up the Coordinating Committee of the Mapuche Parliament. The CAI had a representative in CODECI until 2001, when the representative s mandate was revoked. From 2001 onwards, the CAI voluntarily stopped participating in the Mapuche Parliament, whose annual meeting appoints the indigenous representatives of CODECI and other representatives of the Coordinating Committee. The Government states that the CAI excluded itself from the mechanisms of representation which it had created and in which it had participated.
47. The Government states that the complaint regarding Agreement No. 156 signed between the national Government and the Province of Río Negro is striking because the documentation provided by the complainant is not consistent with the original Agreement. The Agreement was signed in order to harmonize the requirements for registering legal personality and bring them into line with the new Constitution. The Government adds that the Agreement was signed in 2000 and differs considerably from the documentation provided by the complainant. It asserts that it is therefore essential that the complainant clarify the specific points underlying its grievance, since the original text does not violate any recognized right of the indigenous communities. The Government provides a list of registered indigenous communities and others that have applied for registration under the Agreement, which is fully in force. Furthermore, it adds that the Agreement was signed in 2000, when the CAI was still part of CODECI; the CAI therefore cannot really claim that it was unable to participate in the signing of this Agreement.
Province of Río Negro: Rights of the Mapuche communities (Lof) to the lands they traditionally occupy
48. Context. The Government states that the aim of Emergency Act No. 26.160 is to suspend all evictions of indigenous communities, and it grants a period of four years to carry out a legal and cadastral survey of the lands which they traditionally occupy with a view to regularizing ownership in accordance with Article 14 of the Convention. To that end, a special fund of 30 million pesos has been set up and the authority responsible for implementation is the INAI.
49. Conflicting legislative provisions. The Government states that there are a number of conflicts that arise from the implementation of Provincial Act No. 279 on public lands and of Provincial Act No. 2287, the Consolidated Indigenous Peoples Act, but that these conflicts can be resolved rationally if each body assumes its obligations. It considers that CODECI, with regard to Act No. 2287, fulfils the function of a representative body within the meaning of Article 12 of Convention No. 169, and has initiated several legal actions as the natural and necessary representative of indigenous communities and settlers. Those complaints have been submitted to the provincial Land Directorate, which is the authority responsible for implementing Act No. 279. Claims are brought before the Land Directorate by virtue of the subject (the indigenous community and/or dispersed indigenous settlers) and the object (traditionally owned indigenous territory) and seek an administrative ruling recognizing the right to traditional ownership. The Government regrets that, to date, the Land Directorate and CODECI have not managed to coordinate effectively, and that is why temporary occupancy permits for one year are granted.
50. Act No. 279 of 1961 and Decree No. 967 of 2004. The Government states that Act No. 279 and Decree No. 967/04 are provincial laws which, according to articles 21, 31 and 75, paragraph 17, of the Constitution, rank below the Constitution and national laws. With regard to the indigenous issue, Argentina has adopted the principle of concurrent powers of national and provincial authorities. National law on this issue takes precedence over provincial law. However, there are no provisions in Provincial Act No. 279 or Provincial Decree No. 967/04 that infringe community rights. Unless it is assumed that all public land is traditionally occupied by indigenous communities, it is possible that some public land is not occupied by indigenous peoples. The Government maintains that the provincial authorities can regulate the use of public lands that are not recognized as being occupied by indigenous peoples.
51. The Government states that when traditional indigenous occupation of public land is confirmed, indigenous legislation takes precedence over Act No. 279 and its implementing decrees, not only because it exists specifically to deal with this issue, but also because as national legislation, it takes precedence over Act No. 279. The Government states that Act No. 279 does not violate indigenous rights unless applied incorrectly or overzealously.
52. Legal personality. As indicated in paragraph 47 above, the Government states that the annex submitted by the complainant differs considerably from Agreement No. 156 that was signed between the national Government and the Province of Río Negro. Agreement No. 156/1 provides that the INAI and the province give their consent to simplifying the requirements for recognition of the legal personality of those communities that request it and sets the following requirements: (a) application for personality filed by the community; (b) location of the community, with a simple sketch showing specific areas that may be included in the future community deeds; (c) description of the way the community is organized and of the mechanisms (to be approved by the General Directorate of Legal Persons) for appointing and dismissing its authorities; (d) brief summary of the elements accrediting the community s historical/cultural/ethnic origin, together with available documentation; (e) list of the members of the community with degrees of relationship; and (f) mechanisms for incorporating or excluding members.
53. Furthermore, the Government states that Agreement No. 156/1 between the Province of Río Negro and the INAI, which aims to simplify the process for obtaining legal personality for indigenous communities, is fully in force with regard to the details of registrations through which by virtue of the Agreement the following communities have obtained legal personality: Ngpun Currha; Peñi Mapu; Putre Tuli Mahuida; Kume Peuke Mapuche; Wefuwecu; Mongel Mamuell; Lof Huenchupan; Lucinda Quintupray; Las Huaytecas; Elel Kimun; Raghñ Plang Curra Meu; Inchen Ciwew Folil; and Lof Mariano Solo. The following communities have applied for legal personality and their applications are being processed: Catriel; Kom Kiñe Mu; Rincón del Manzano; Kemu Paku; Las Aguadas; Fisque Menuco; Lof Manuel Grande; Manuel Pirhen; Lof Pasos-Huentelaf; Los Pehuenes; Lof Mariano Epulef and Pillahuinco.
54. The Government adds that an agreement has been signed between the INAI and the Province of Río Negro to subsidize the new rights, legal personality and land regularization programme in Río Negro, processed through File No. 10.256 of 1998, which aims to regularize ownership of lands on which the Pilquineyeu del Limay and Lipetrén indigenous communities are settled, as well as the established critical areas ; the programme covers 320,000 hectares. It also provides information on the new rights, legal personality and land regularization programme (II), File No. 50.141/04, which covers 334,000 hectares. The programme provides for the organization of the Mapuche families in the critical dispersed areas and the targeted communities with a view to community self-management, promotes the recognition of legal personality and land regularization, and identifies viable productive alternatives.
55. With regard to the cases cited by the complainant, the Government provides the following information: (a) with respect to Lof Casiano Epugner, it states that the Lof has to confirm who its members are to the Land Directorate and CODECI for its territory to be recognized with a community title; moreover, CODECI is processing claims from other direct relatives of Mr Agustín Casiano who also consider themselves to have a right to the lands; and (b) with respect to the Kom Kiñe Mú Mapuche community (KKM), the Government states that to date the problem has been the fact that the community s territory is in the Ancalao reserve, a situation that precludes obtaining a community title because the division of Ancalao territory must be resolved within the community. According to the Government, this is a question of preserving ancestral territories, not dividing them, and that the families of this community managed to resist eviction because they proved that they belonged to the Ancalao community. The Government also provides information on other communities, but the Committee has only cited some examples since it is not the aim of this report to analyse each individual case. With regard to the case of Pedraza Melivillo, the Government states that in June 2006, the legal representative of the Lof, objecting to Decision No. 83/2006 of the Land Directorate which provided for administrative eviction, referred the matter to CODECI, which issued Opinion No. 03/2006, but, at the time of the Government s reply, no administrative decision had yet been taken.
Marks and signs certificates
56. The Government states that the difficulty in obtaining marks and signs certificates is restricted to those communities or members whose lands have not been regularized in respect of ownership and title. Indigenous status is not in any way cited as a reason for not issuing such certificates. The Government states that the situation cannot be considered without reference to the process of land regularization that is under way.
57. The Government recalls that until the Constitution of 1994, the only reference in the Constitution to the indigenous issue was in the provision requiring the National Congress to promote peaceful relations with the Indians and promote their conversion to Catholicism . The Constitution of 1994 sets out the requirement to recognizes the ethnic and cultural pre-existence of the indigenous peoples of Argentina, to ensure respect for their identity and rights to bilingual and intercultural education, to recognize the legal personality of their communities and the community possession and ownership of the lands they traditionally occupy, and to regulate the granting of other lands adequate and sufficient for human development; those lands shall be inalienable, non-transferable and not subject to taxes or sequestration; and to guarantee their participation in the management of their natural resources and in other interests affecting them. The provinces may exercise these powers concurrently . The Government states that this is part of a process of change which Argentina supported without hesitation. It recalls the ruling given in 1929 in the case Guari Lorenzo v. Province of Jujuy and the heirs of Fernando Campero , in which the Cochinota and Casabindo communities claimed community lands; the court ruled that there was no community ownership except that established in accordance with section 2675 (on joint ownership) of the Civil Code, and that indigenous communities were not persons according to the Civil Code.
58. The Government states that it is necessary to contrast these past situations with the notable progress that has been actively and continuously made towards enforcing the rights of the indigenous peoples. Much remains to be done, but in 1994 the Constitution clearly crystallized the fundamental rights of the indigenous communities, and since then the actions undertaken to enforce those rights have increased. The Government indicates that there are indeed difficulties in obtaining the aforementioned certificates, but that these difficulties are a manifestation of the underlying problem, which is access to land. It states that, unfortunately, as much land remains to be regularized, the question of certificates is an unwelcome side issue in relation to the fundamental problem of land. The close relationship between access to certificates and land ownership stems from the provincial regulations governing their delivery with a view to establishing greater legal security, order and reliability.
59. Finally, the Government states that the land ownership requirement for granting certificates is one which the province should certainly reconsider, and should resolve this issue in a different manner for members of indigenous communities. It states that the land survey to be carried out in accordance with national Act No. 26.160 provides a good opportunity for the province to adjust its criteria in the system for granting certificates.
C. The Committee s conclusions
60. The Committee takes note of the information and annexes submitted by the complainant organization and of the reply and annexes sent by the Government.
61. The Committee notes that the complainant organization alleges, at national level, a lack of consultation on legislative measures liable to affect the indigenous peoples directly; and at the level of the Government of the Province of Río Negro, a lack of appropriate consultation regarding legislative and administrative measures and issues of representativeness; failure to implement the rights of the Mapuche communities (Lofs) to lands which they have traditionally occupied; and discrimination against the Mapuche people in employment and occupation.
Consultation regarding legislative measures of national scope
62. The Committee notes that the complainant alleges failure to hold appropriate consultations on a number of bills and preliminary drafts of national laws. It notes that some of these were incorporated in the Emergency Act (No. 26.160); others expired or were not passed.
63. The material provision here is Article 6 of the Convention.
1. In applying the provisions of this Convention, governments shall:
(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;
...
(c) establish means for the full development of these people s own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose;
2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
64. With respect to the bills submitted to the Senate or to the Chamber of Deputies, referred to in paragraph 12 of this report, the Committee notes that the Government has not provided any information thereon. The Committee recalls that pursuant to Article 61(1)(a) of the Convention, the Government is required to consult the peoples concerned whenever consideration is being given (Endnote_4) to legislative or administrative measures which may affect them directly. While this provision does not establish the precise timing of the consultations, the Committee considers that mechanisms should be established to ensure that consultations on relevant legislative or administrative measures take place sufficiently early to ensure that they are effective and meaningful. With respect to the bills referred to in paragraph 12, those that are still under consideration should be the subject of consultation, as indicated above.
65. As to the bills that were incorporated in the Emergency Act, the Committee notes the complainant s objection that the consultation was not appropriate and that in Río Negro, Salta and Misiones, a number of communities were not aware of the elections held to appoint the CPI.
66. The Committee notes that, according to the information sent by the Government, when the Act was in the process of adoption, particular importance was attached to indigenous participation, and the establishment of the CPI, to include representatives of the indigenous peoples of every Argentine province, was promoted. The Committee also takes note of the list of participating communities, the elected representatives in each province and the record of proceedings of the elections in the Province of Río Negro, sent by the Government. It notes in particular that at its first plenary meeting in Chapadmalal, the CPI endorsed the Bill that was taken as the basis for Act No. 26.160 and that the members of the CPI gave their views directly to parliamentarians.
67. Context. The Committee takes note of the efforts the Government has made through the Ministry of Labour and the INAI to set up a body for indigenous participation and consultation at national level through the CPI. It points out that the Committee of Experts on the Application of Conventions and Recommendations noted with particular interest, in its observation of 2006, paragraphs 1 (Endnote_5) and 4, (Endnote_6) the measures adopted and planned by the Government to strengthen the bodies responsible for coordinated and systematic action in keeping with the Convention and to further consultation and participation. It notes that in May 2007, after this representation was submitted, the CPI participated in a workshop organized by the Ministry of Labour and the INAI with the cooperation of the ILO, in order to reinforce the mechanism for consultation and participation indicating that such efforts are ongoing.
68. The Committee notes that the Government has made continuous efforts to strengthen and give an institutional basis to consultation bodies through the CPI. Furthermore, it referred the abovementioned Act which, incidentally, protects indigenous communities from eviction to the CPI for consultation, and the CPI held an election to appoint indigenous representatives nationwide who gave their support to the Act.
69. The Committee accordingly takes the view that the Government of Argentina did not violate Article 6 of the Convention in the process of adopting the Emergency Act.
70. The Committee must nevertheless take account of the complainant s objection that some communities in the Provinces of Río Negro, Salta and Misiones were not called on to vote in the abovementioned election. While noting the Government s commitment to strengthen consultation and participation, the Committee takes the view that the Government should pursue efforts to make the CPI more representative and in particular to ensure that the INAI makes certain that, when they call elections for CPI representatives, the provinces invite all communities and representative institutions of indigenous peoples to participate. The Committee is also of the view that, in the implementation of Act No. 26.160, it is essential to promote the consultation and participation of all communities and representative institutions of indigenous peoples regarding matters that may affect them directly. In this way, as well as meeting the requirements of Article 6 of the Convention, the consultations will gain in legitimacy and contribute to preventing disputes in the future because all the different experiences, problems and views of the indigenous peoples will be taken into consideration.
Río Negro Province: Consultation on legislative and administrative measures and issues of representativeness
71. The Committee notes that at provincial level as well the allegations refer to issues of representativeness.
72. Accordingly, the applicable provisions are Article 6 of the Convention, cited above, and Article 12 of the Convention, according to which:
The peoples concerned shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings, either individually or through their representative bodies, for the effective protection of these rights. Measures shall be taken to ensure that members of these peoples can understand and be understood in legal proceedings, where necessary through the provision of interpretation or by other effective means.
73. The thrust of the allegations is that as a representative body, CODECI is not sufficiently representative to ensure effective observance of the rights of indigenous peoples, and that the Government of the Río Negro Province consults only with CODECI and neither consults nor involves the CAI, which, the complainant asserts, represents a number of Mapuche communities and villagers.
74. The Committee notes that the Government does not directly address the issue of whether the CAI is at present representative but points out that the CAI withdrew of its own free will from the Coordinating Committee of the Mapuche Parliament thereby excluding itself from the representative bodies which formerly it had taken part in and even helped to create.
75. The Committee considers on the one hand that, by withdrawing from the Coordinating Committee, the CAI relinquished the best institutional opportunities afforded by Provincial Act No. 2287 to defend indigenous rights and develop policies for indigenous peoples. On the other hand, it considers that the indigenous peoples have the right to elect their own representative institutions. By leaving the Coordinating Committee, the CAI gave up the opportunity to participate in the bodies envisaged in Provincial Act No. 2287, but this does not imply, in so far as it is really representative, that it has lost the rights established in Convention No. 169 and in particular the right to be consulted and to participate regarding issues liable to affect directly the communities it represents. As the Governing Body has already established in other cases, In view of the diversity of the indigenous peoples, the Convention does not impose a model of what a representative institution should involve, the important thing is that they should be the result of a process carried out by the indigenous peoples themselves. But it is essential to ensure that the consultations are held with the institutions that are truly representative of the peoples concerned (Endnote_7) and the principle of representativity is a vital component of the obligation of consultation it could be difficult in many circumstances to determine who represents any given community. However, if an appropriate consultation process is not developed with the indigenous and tribal institutions or organizations that are truly representative of the communities affected, the resulting consultations will not comply with the requirements of the Convention . (Endnote_8)
76. Representativeness is thus an essential requirement for the consultation and participation procedures established by the Convention and signifies the right of the different indigenous peoples and communities to participate in these mechanisms through representative institutions resulting from a process that they themselves carry out. For this requirement to be met, it is essential that the authorities ensure that all the organizations resulting from such a process are invited to take part in the consultation and participation procedures, and that the procedures allow all the different views and sensitivities to be expressed. The Committee will not go into whether or not the CAI is representative. It nevertheless hopes that the government of the province will promote forms of consultation and participation that are broad and include all the representative institutions of indigenous peoples for the purposes of Convention No. 169.
77. As to the complainant s assertion that CODECI does not properly represent the interests of the indigenous peoples, it is not for the Committee to judge the manner in which a representative body functions. Nor will it determine whether or not the body s actions are lawful: such questions, where they arise, are a matter for the national and provincial mechanisms provided for in the law.
78. With regard to the Government s assertion that CODECI performs the functions of a representative body within the meaning of Article 12 of the Convention, which provides that the peoples concerned shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings, either individually or through their representative bodies , the Committee points out that the representative bodies referred to in this provision should be construed as performing not functions in general but that of taking legal proceedings. Furthermore, since the Convention does not establish that there shall be only one representative body with the authority to take legal proceedings, it is the Committee s understanding that any representative body appointed by indigenous peoples should be able to do so, pursuant to Article 12 of the Convention.
79. With regard to Decree No. 907 of 2004, which the complainant asserts was not submitted to appropriate consultation, the Committee notes that in its reply the Government does not provide specific information but refers to the fact that the CAI relinquished functions that it could otherwise have performed.
80. As for the complainant s objection to the signing by CODECI and the INAI of Agreement No. 156, and to the El Bolsón agreement, in the Committee s view the issue is again one of representativeness. The Committee understands that CODECI s representativeness derives from the mechanisms laid down in the law and that in accordance with the law CODECI s indigenous members were elected by the Coordinating Committee of the Mapuche Parliament. There are therefore no grounds for finding that the bodies concerned breached the principle of representativeness by drawing up the abovementioned provisions and agreements; each of them acted within the authority conferred on them by law. The Committee further points out that in so far as there are communities and/or representative organizations that are not covered by CODECI, the Government of the Province of Río Negro should broaden consultations and provide for a mechanism that includes these organizations for the purpose of the consultation and participation established in Convention No. 169, particularly as regards legislative and administrative measures that may affect the peoples directly (see paragraph 75 of this report).
81. The Committee notes with satisfaction that Act No. 26.160 suspends evictions of indigenous communities and orders the regularization of the lands that they traditionally occupy. In the Committee s view, this is an essential step towards effective implementation of the land rights envisaged in the Convention, and marks the beginning of a new phase in which implementation will require legislative and administrative measures to be adopted. It notes in this connection that in a supplementary submission, the complainant sought provision for bodies in which the implementation of the Emergency Act can be opened up to dialogue with the representative organizations of the Mapuche people of the province and in which those affected directly can participate and discuss matters thoroughly and in full knowledge of the facts they need in order to give their consent, which must be free and informed . The Committee considers that in the process of implementation of the law, all the representative organizations of peoples or communities should be able to participate and be consulted about legislative or administrative measures that may affect them directly, with the objective of achieving agreement or consent. The Committee points out, however, that Article 6 does not stipulate that consent must be obtained in order for the consultations to be valid but it does require pursuit of the objective of achieving consent, which means setting in motion a process of dialogue and genuine exchange between the parties to be carried out in good faith. The Committee hopes that the Government will make efforts to ensure that the organizations resulting from the Mapuche people s own processes are able to participate and contribute to creating an opportunity to regularize the indigenous lands opened up by Act No. 26.160.
Province of Río Negro: Rights of the Mapuche (Lof) communities to the lands they traditionally occupy
82. The Committee notes that the main issues here are recognition, measures to identify the lands traditionally occupied and, in particular, procedures to settle land claims by the peoples concerned. The material provision is therefore Article 14 of Convention No. 169:
1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.
3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned. (Emphasis added.)
Article 6 on consultation is also relevant in so far as the adequate procedures referred to in Article 14(3) concern legislative or administrative measures, which must be the subject of prior consultation.
83. The Committee notes the allegation that there are difficulties in asserting the rights to traditional occupations laid down in the Constitution of 1994 and Provincial Act No. 2887 owing to the application of Provincial Act No. 279 on public lands and Decree No. 967 of 2004 regulating grazing fees. The complainant also alleges that there are difficulties with other measures such as the Act of Agreement on the intangibility of public lands, as well as issues of legal personality, likewise in connection with the assertion of land rights.
84. Having noted the information supplied by the complainant, including the numerous administrative and judicial actions brought by communities to obtain recognition of lands that they traditionally occupy or that they claim as such in the Province of Río Negro, the Committee understands that the main issue raised by the complainant is whether or not there is an adequate procedure in the national legal system to resolve land claims made by the peoples concerned, as Article 14(3) of Convention No. 169 requires.
85. An instance of such difficulties is to be found in paragraph 29 of this report in which the Committee noted that, on the one hand, CODECI recognized the community territory of Lof Casiano on the basis of Provision 13/03 and, on the other, the Ministry of the Interior repealed this provision by Resolution No. 3892 of 8 November 2004 on the ground that nothing in Act No. 2287 and Decree No. 310/98 gave CODECI the authority to issue administrative decisions of this kind. It also took note of other cases of the same nature referred to by the complainant, such as Sede, Alfredo and others v. Vila, Herminia and others/evictions , in which the ruling was that the administrative remedies afforded by CODECI had to be exhausted before an application could be made for judicial review.
86. The Committee further noted, in paragraph 30 of this report, that according to the complainant the Land Directorate of the Province of Río Negro applied to the Lof Mapuche Pedraza Melivillo case Act No. 279 on public lands, which establishes that eviction orders are not subject to judicial review and that the only possible defence against treatment as an intruder is possession of one of the following titles: temporary occupancy permit, lease contract, award of sale. It further noted, in paragraph 55 of this report, the Government s reply to the effect that in June 2006, the legal representative of the abovementioned Lof, objecting to Decision No. 83/2006 of the Land Directorate which provides for administrative eviction, took the matter to CODECI, which issued Opinion No. 03/2006, but as yet no administrative decision has been rendered.
87. The Committee also noted, in paragraph 49 of this report, the Government s regret that at present there is no efficient coordination between the Land Directorate of the Province of Río Negro and CODECI, which is why temporary occupancy permits are issued for one year.
88. The Committee has cited the above cases to illustrate the complexities in the laws, institutions and mechanisms of Río Negro Province that the indigenous peoples have to cope with in asserting their rights to land.
89. The Committee notes with satisfaction the Government s statement that where it is shown that indigenous people traditionally occupy public lands, the legislation on indigenous matters takes precedence over Act No. 279 and Decree No. 907/04, because it is both specific to the subject matter and, where national in scope, ranks higher than Act No. 279.
90. The Committee noted earlier a number of instances in which this legislation is applied. It also noted that, according to the Government, Act No. 279 does not violate indigenous rights but could do so were it to be wrongly or extensively applied.
91. The Committee nonetheless observes that Act No. 26.160 was adopted in order to prevent evictions and regularize traditionally occupied lands and that it affords a new opportunity for overcoming difficulties. It noted earlier the complainant s request that provision be made for bodies in which implementation of Act No. 26.160 can be opened up to dialogue with the representative organizations of Mapuche peoples in the province. And, having noted the application of Act No. 279 on indigenous peoples lands, the intense administrative and judicial activity in some cases and the opportunities opened up by Act No. 26.160, the Committee is of the view that the Government needs to engage in considerable efforts to identify, with the participation of the indigenous peoples, the difficulties encountered in the procedures for regularizing lands and to work out a rapid and easily accessible procedure that meets the requirements of Article 14(3) of the Convention. The Committee notes that Act No. 26.160 is in force for four years and that it was passed on 1 November 2006. It accordingly hopes that the Government will redouble its efforts to secure rapid progress towards the objective of identifying and regularizing the lands traditionally occupied by indigenous peoples.
92. Levy for land use. Decree No. 967/04. The Committee noted in paragraph 26 of this report that the members of the Río Chico Abajo Mapuche community, which has legal personality granted by the INAI, received from the Land Directorate of the province notices of arrears in grazing fee payments and notices for renewal of temporary occupancy permits applying specifically to fiscaleros. It notes with satisfaction the INAI s request to the Río Negro Province Land Directorate for suspension of the claim to payment of a levy for land use applying to members of indigenous communities that recognize themselves as such , and that the INAI stated that the delay in giving effect to the said proposal, attributable to provincial state bodies CODECI must not end up adversely affecting the communities and their members whose lands have not been regularized . The Committee hopes that the Government will undertake efforts to ensure that Río Negro Province is able to implement solutions in a consistent manner in accordance with the INAI s proposal.
93. Legal personality and Agreement No. 156/1 of 2000 concluded by the INAI and the Province of Río Negro. The Committee takes note of the document Legal personality of the indigenous communities of Río Negro Province, Agreement No. 156/1 , attached as Annex 25 to the complainant s first submission. It notes that, according to the Government, this document is not consistent with Agreement No. 156/1 that the Government provided. By means of Agreement No. 156/1 the Institute and the province give their consent to simplifying the requirements for recognition of the legal personality of those communities that so request and sets the following requirements: (a) application for personality filed by the community; (b) location of the community, with a simple sketch showing specific areas that may be included in the future community deed; (c) description of the way the community is organized and of the mechanisms (to be approved by the Directorate General of Legal Persons) for appointing and dismissing its authorities; (d) brief summary of the elements accrediting the community s historical/cultural/ethnic origin, together with available documentation; (e) list of the members of the community with degrees of relationship; and (f) mechanisms for incorporating or excluding members. The Committee observes that the document sent by the complainant is not Agreement No. 156 but a note on paper headed, the Province of Río Negro, Ministry of the Interior, CODECI , which refers to Agreement No. 156 and explains the requirements adding a considerable amount of detail. Noting that Agreement No. 156, at the seventh indent, gives the INAI the authority to oversee the established procedures and registrations in all such cases as it deems necessary, the Committee hopes that the INAI will ensure that the abovementioned Agreement is fully applied in both the letter and spirit in which it was concluded.
94. With regard to the complainant s assertion that scattered communities lack protection, the Committee notes from what the Government reports (see paragraph 49) that scattered indigenous people may likewise file claims. It nonetheless hopes that this issue will be addressed in the context of the implementation of Act No. 26.160, in consultation with the representative institutions of the indigenous peoples.
Marks and signs certificates
95. The Committee observes that the issue here is that the delivery of marks and/or signs certificates (titles of cattle ownership) is linked to titles of ownership or lease, or temporary occupancy permits provided for in the land law, so Mapuche stockbreeders who engage in traditional occupations and whose lands have not been regularized are systematically excluded. This, according to the complainant, affects their right of admission to an occupation, in this case a traditional activity, on an equal footing with others. The relevant provisions are therefore Article 20(2) and Article 23(1) of the Convention.
According to Article 20(2):
Governments shall do everything possible to prevent any discrimination between workers belonging to the peoples concerned and other workers,
According to Article 23(1):
Handicrafts, rural and community-based industries, and subsistence economy and traditional activities of the peoples concerned, such as hunting, fishing, trapping and gathering, shall be recognised as important factors in the maintenance of their cultures and in their economic self-reliance and development. Governments shall, with the participation of these people and whenever appropriate, ensure that these activities are strengthened and promoted.
96. The Committee notes that according to the complainant and the Government does not demur stockbreeding is a traditional activity of the Mapuche people and necessary to their livelihood. It further notes that the requirement to produce a title of ownership or some evidence of legal occupancy which applies to anyone seeking a title of animal ownership (marks and/or signs certificates) is one that the Mapuche people are not at present in a position to fulfil because their lands are in the process of regularization.
97. The Committee has taken due note of the progress made in Argentina since the adoption of the Constitution of 1994 and is aware of the Government s commitment to regularizing lands, reflected in the adoption of Act No. 26.160, which suspends evictions of indigenous communities and orders a land survey to be conducted with a view to regularization. It further notes that according to the Government, these requirements are not discriminatory because, the Government emphasizes, on no account is indigenous status the reason why there are difficulties in delivering these certificates at provincial level . The Committee in no way takes issue with that assertion. However, there need not be intent in order for discrimination to exist. The concept of discrimination encompasses indirect as well as direct discrimination. Indirect discrimination refers to conditions, regulations, criteria or practices that are apparently neutral and apply to all but which in fact have a disproportionately adverse effect on some. The Committee is therefore of the view that to require a title of ownership or legal occupancy for the delivery of marks and signs certificates amounts to indirect discrimination towards indigenous stockbreeders.
98. Also taking into account the fact that the issue is one of traditional activities, the Committee recalls that according to Article 23, paragraph 1, of the Convention, Governments shall, with the participation of these people and whenever appropriate, ensure that these activities are strengthened and promoted. Article 2 stipulates that Governments shall have the responsibility for developing, with the participation of the peoples concerned, co-ordinated and systematic action including action promoting the full realization of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions .
99. The Committee took note of the fact that, according to the Government, much land still needs to be regularized, and the issue of certificates is an unwelcome side effect of the land problem. The Committee welcomes the Government s statement to the effect that Act No. 26.160 provides a good opportunity to adjust the system of issuing certificates, and that the province will undoubtedly need to reconsider this question and resolve the matter in ways adapted to the particular situations of the indigenous communities. The Committee notes that section 13 of Decree No. 1888, containing implementing regulations for the Act concerning marks and signs, stipulates with regard to section 13 of the Act that in order to issue the certificates in question, there is a requirement, in the case of indigenous groups, for certification from the community chief . The Committee considers that the implementation of this provision should be examined as part of the adjustment process. Noting that much land remains to be regularized, the Government s view that the province should re-examine the question, and the Government s willingness to apply the Convention, the Committee considers it necessary to adopt measures rapidly to ensure that members of indigenous peoples are no longer required to show title to land or to meet other conditions set out in section 13 of the Act in question in order to obtain the certificates. It also considers that until the issue of land ownership is settled, interim measures should be adopted with the participation of the peoples concerned to ensure that indigenous stockbreeders can obtain marks and signs certificates and carry on their activities under conditions of equality.
D. The Committee s recommendations
100. The Committee recommends to the Governing Body that it approve this report, and, in the light of the conclusions contained in paragraphs 60 99, that it:
(a) request the Government to continue making efforts to strengthen the CPI and ensure that, when elections of indigenous representatives are held in all the provinces, all the indigenous communities and all institutions considered by the communities themselves to be representative are invited to participate;
(b) request the Government to carry out consultations with regard to the bills referred to in paragraphs 12 and 64 of this report and to establish mechanisms to ensure that consultations with indigenous peoples take place whenever legislative or administrative measures that may directly affect them are being considered. The consultations should be carried out sufficiently early so as to be effective and meaningful.
(c) request the Government to ensure that, in implementing Act No. 26.160, all communities and truly representative institutions of the indigenous peoples likely to be directly affected are consulted and able to participate;
(d) request the Government to ensure that, in accordance with the principle of concurrent powers of national and provincial authorities, effective consultation and participation mechanisms are established involving all the truly representative organizations of the indigenous peoples, as set out in paragraphs 75, 76 and 80 of this report, in particular in the process of implementing national Act No. 26.160;
(e) request the Government in implementing Act No. 26.160 to make substantial efforts, in consultation with and with the participation of the indigenous people of Río Negro Province, to clarify: (1) the difficulties in the procedures for regularizing land, with a view to developing a rapid and accessible procedure that meets the requirements of Article 14, paragraph 3, of the Convention; (2) the question of the levy for land use referred to in paragraph 92 above; (3) any problems in obtaining legal personality; and (4) the issue of dispersed communities and their land rights;
(f) request the Government to make efforts to ensure that measures are adopted in Río Negro Province, including interim measures, with the participation of the indigenous people involved, to ensure that indigenous stockbreeders have easy access to marks and signs certificates and carry on their activities in conditions of equality, and to strengthen that activity in accordance with the terms of Article 23 of the Convention;
(g) invite the Government to provide information to the Office regarding the implementation of the issues raised above, for examination by the Committee of Experts on the Application of Conventions and Recommendations.
101. The Committee requests the Governing Body to adopt this report, in particular paragraph 100, and to declare the present proceedings closed.
Geneva, 12 November 2008.
(Signed) Mr R. Estrela de Carvalho
Chairperson
Mr J.A. De Regil
Mr J.R. Gómez Esguerra
Points for decision: Paragraph 100; Paragraph 101.
Endnote 1
According to the complainant, the following were among those not invited: the Indigenous Advisory Board (CAI) and the following communities: Lof Villar Cayumán (Paraje Quili Bandera); Lof Casiano Epugmer (Paraje Quetrequile); Kom Kiñe Mú community (Paraje Arroyo las Minas); Juan Pichón community (Paraje Cuesta del Ternero); Newen Twain Kom community (Paraje Fitamiche); Lof Mariano Epulef (Paraje Anecón Chico); Lof Ponce (Paraje Carri Laufquen); Lof Seguel (Paraje Carri Laufquen); Lof Antual Albornoz (Paraje Carri Laufquen); Lof Pedraza-Melivilo (Paraje Carri-Laufquen); Mapuche Sayhueque community (Paraje Colitoro); Lof Paillecheo (Paraje el Caín); Lof Lleiful-Cayumil (Paraje Vaca Laufquén); and the Rio Chico Abajo community.
Endnote 2
According to the complainant, several communities of the Guaraní people were not invited, including the communities of El Tabacal, Iguopegenda, Campo Chico, Algarrobito and Iyigua Pentirami.
Endnote 3
The letter states that the meeting was attended by indigenous authorities and representatives of communities and organizations from the whole province: Longko José Collueque, Longko Lucerinda Cañumil, Longko Benito López, Lonco Huenchupan Alejandro and Lucas Huentenao. The following representatives of the communities also attended: Kona Niyeu, Limi Niyeu, Arroyo Tembrao, Somuncurá, Putren Tuli Mahuida, Kintul Follil, Leufuche, Guaytecas, Ellel Quimun, Quiñe Trau Peñi, Yamaniyeu, Makun Chao, Fisc Menuco Nehuen, Evriloche, Lolog Mahuida, Kme Piuque Mapu, Río Chico, Paso de los Molles, Fta Ruin, Pichi Leufu, Pillahuinco, Yuquiche, Peñi Mapu, Epu Katan Mahuida, Blancura Centro, Painefil, Wiritray, Pilquiniyeu del Limay, Tekel Mapu, Monguell Mamull, Cme. Queche, Atraico, Colan Conue, Anekon Grande, Ngepun Curra, Jacobacci, Tripay Antu, Rincón del Manzano, Cañumil and Kme Mapu.
Endnote 4
Emphasis added.
Endnote 5
The Committee notes the Government s detailed report and the annexes thereto. It notes that the Office provided technical assistance on 11 and 12 September 2006, following a request from the Government, with the aim of addressing the issues raised by the Committee in its most recent comments. In that context, the Ministry of Labour s International Affairs Department examined with the Office the need to strengthen the institutional basis in order to give better effect to the Convention, particularly the bodies responsible for coordinated and systematic action (Articles 2 and 33 of the Convention), and those responsible for consultation, participation and representativeness issues. The Committee notes with particular interest that, according to the report, the Government has adopted and is planning various measures to achieve these objectives gradually.
Endnote 6
Articles 6, 2 and 33. The Committee notes that in order to ensure that indigenous people participate in the Committee to align the domestic legislation with Convention No. 169 , procedures are being established for such participation. With this in view, the Executive, through the INAI, has promoted the establishment of the Indigenous Participation Council (CPI). According to the report, the CPI is made up of indigenous representatives of all the indigenous peoples in each province, elected by genuine community representatives assemblies. A second stage will see the establishment, through the CPI, of the Coordinating Council provided for in Act No. 23302, which will consist of representatives of the Ministries of the Interior, the Economy, Labour, Education and Justice, the provinces and the indigenous peoples. The Coordinating Council s duties include overseeing the National Register of Indigenous Communities, identifying problems and establishing priorities for solving them, and setting up the INAI s programme of activities for the long and medium term. Furthermore, at its first national meeting, the CPI set up a bureau for the coordination of representatives at regional level.
Endnote 7
GB.289/17/3, para. 102.
Endnote 8
GB.282/14/2, para. 44.