Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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

Other comments on C169

Observation

Direct Request

2018
2016
2013
2010

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Article 1 of the Convention. Scope of application. The Committee notes the information provided by the Government in its report on the number of persons belonging to indigenous peoples. According to data from the National Socio-Economic Characterization Survey (CASEN 2015), the total number of persons who identify themselves as being members of an indigenous people is 1,585,680, distributed among nine peoples (Aymara, Rapa Nui or Pascuenses, Quechua, Mapuche, Atacameño (Likán-Antai), Colla, Kawashkar or Alacalufes, Yámana or Yagám, and Diaguita), amounting to 9.03 per cent of the total population of the country. The Government also indicates that, according to the preliminary results of the CENSO 2017, the population which considers itself to be indigenous totals 2,185,792 persons (12.8 per cent of the population). The Committee requests the Government to continue providing up-to-date information on the number of persons belonging to indigenous peoples, indicating the peoples concerned and their geographical distribution, taking into account that these data are an important tool for formulating and targeting measures that implement the Convention. The Committee once again requests the Government to provide information on the measures taken to ensure that the Changa, Chono, Huilche and Pehuenche peoples enjoy the protection afforded by the Convention.

Articles 2 and 33. Coordinated and systematic action. In its previous comments, the Committee noted the bills presented by the Government to the Chamber of Deputies providing for the establishment of a national indigenous peoples council responsible for representing the interests, needs and rights of the indigenous peoples as a whole, and also for the establishment of a ministry of indigenous peoples and the formulation of an indigenous national policy. The Committee observes that the Government has not provided any information on the status of these bills. The Committee recalls that the Convention refers to the active participation of indigenous peoples in administrative and legislative decision-making with regard to subjects that concern them, including the submission of initiatives and proposals for measures, programmes and activities that contribute to their development. The Committee once again requests the Government to provide information on the actions that have been taken within the competent administrative bodies to promote the effective participation of indigenous peoples in developing coordinated and systematic action to protect their rights and guarantee respect for their integrity. The Committee also requests the Government to indicate whether the legislative initiative to establish a national indigenous peoples council and a ministry of indigenous peoples, or any other body responsible for dealing with indigenous affairs, is still in progress, indicating the manner in which indigenous peoples are consulted and participate therein.

Article 3. Human rights. In its previous comments, the Committee noted the Government’s pledge not to apply anti-terrorist legislation to members of indigenous peoples for acts of social protest and also noted the preparation of a bill to align legal texts on terrorist offences with international human rights legislation. The Committee encouraged the Government to continue its efforts and asked it to provide information on any complaint of abuses or violence against indigenous peoples by the security forces.

The Committee observes that the Government has not supplied any information on the progress of the reform of anti-terrorist legislation or on any complaints of abuses or violence against indigenous peoples by the security forces. The Committee notes that the United Nations Committee against Torture (CAT), in its concluding observations of August 2018 on Chile, expressed concern at the inappropriate application of the Anti-Terrorism Act against Mapuche activists charged with damaging private property, and also at the excessive use of force by the security forces against members of the Mapuche people in the context of evictions and raids in their communities (CAT/C/CHL/CO/6, paragraphs 18 and 22). The Committee requests the Government to provide information on the measures taken or envisaged to prevent the use of force or coercion in violation of the human rights and fundamental freedoms of indigenous peoples. The Committee also requests the Government to report on any developments in relation to the current status of the reform of the anti-terrorist legislation.

Article 7. Development. The Committee notes the Government’s indication that the “Indigenous environmental protection and management fund” continues to operate, under the auspices of the Ministry of the Environment in cooperation with the National Indigenous Development Corporation (CONADI). The objective of this fund is to promote and support projects devised by indigenous communities or associations which contribute towards improving the environmental conditions of the locations they inhabit. From 2015 to 2017, a total of 71 projects received support from the fund. The Government also reports on the implementation of the Chile Indígena (indigenous Chile) programme, with the support of the CONADI National Council, which seeks to contribute to improving the quality of life of indigenous population groups, promoting their development and reinforcing their identity. The programme operates through the setting up of territorial units in which communities with common family roots or originating from the same community interact, with a view to drawing up a territorial plan of priorities through the participation of members of the community and the assignment of funds to all territorial units for the implementation of their plans. Between 2015 and 2018, the programme benefited communities in the Metropolitana, Araucanía, Los Rios and Los Lagos regions through the financing of capacity-building projects in organizational reinforcement, the indigenous economy and the role of women. The Committee requests the Government to continue providing information on the measures taken to promote initiatives for the development of indigenous peoples, both through CONADI and through other administrative bodies, and on their impact on the economic, social and cultural environment.

Article 14. Lands. In its previous comments, the Committee noted the mechanisms adopted by the Government to ensure the effective protection of the rights of indigenous peoples over their traditional lands. The Committee notes that, according to information supplied by CONADI and forwarded by the Government, between August 2016 and May 2018 a total of 22,408.15 hectares were granted to 98 indigenous communities in the regions of Bio Bio, Araucanía, Los Rios and Los Lagos. In addition, a total of 27.33 hectares considered to be sites of cultural significance were granted to 21 communities in Araucanía. The Committee welcomes the advances made in the processes of land restitution to indigenous communities and encourages the Government to continue taking steps to ensure that indigenous peoples enjoy effective protection of the rights of ownership and possession over lands that they traditionally occupy through the processes of demarcation and titling. The Committee also requests the Government to provide information on the procedures that exist to settle any disputes that arise in the demarcation and titling processes, and also to deal with land claims submitted by the indigenous peoples concerned.

Article 15. Natural resources. In its previous comments, the Committee observed that projects or activities likely to have an environmental impact which must go through the Environmental Impact Assessment System (SEIA) did not include mining operations at the post-survey exploration stage or the exploitation stage, and so it asked the Government to take the necessary measures to ensure that indigenous peoples are consulted before any mining exploration or exploitation activities are undertaken on the lands that they traditionally occupy. The Government indicates that Decree No. 40 of 2013, issuing implementing regulations for the General Environment Act (No. 19.300 of 1994), imposes the obligation to submit mining development projects to the SEIA, including for coal, oil and gas, covering surveys, exploitation, processing plants, the disposal of residues and tailings, and also the industrial extraction of aggregates, peat or clay. In this regard, the Government refers to the Paguanta mining survey project in the Tarapacá region, which received a favourable assessment in October 2014 after being the subject of a consultation process with the Aymara indigenous community concerning the impact of transit restrictions on the Cultane access route to which the project gave rise. The consultations concluded with a final memorandum of understanding signed in January 2014.

The Committee notes the adoption of Special Resolution No. 1152 of August 2015 establishing the Seaboard Unit (UBC) at the CONADI National Directorate in order to achieve better implementation of Act No. 20.249 of 2008 establishing indigenous marine coastal areas (ECMPOs). The objective of this Act is to safeguard the customary use of such areas, to maintain the traditions and use of natural resources by communities with links to coastal areas, and thereby ensure the conservation of natural resources and the welfare of the communities concerned. The UBC contributes to the preparation of reports on customary use and the implementation of consultation processes with indigenous communities regarding the establishment of requested ECMPOs. The UBC also participates in the committee which reviews plans for the administration of ECMPOs, verifying that the agreements derived from the consultation processes are respected. The Government indicates that approval was given to the establishment of ECMPOs covering a total of 140,146.46 hectares between 2015 and 2018, with 18 consultation processes having been held in that respect.

The Committee requests the Government to provide information on the manner in which the cooperation of indigenous communities is ensured in the evaluation of studies regarding the social, spiritual, cultural and environmental impact of mining exploration and exploitation projects other than those involving coal, oil and gas in the aforementioned communities, giving examples of consultation processes in this regard. In view of the fact that, under the Basic Constitutional Act on mining concessions (No. 18.097 of 1982), mining concessions include permits for exploration as well as exploitation of mineral resources, the Committee once again requests the Government to take the necessary measures (including legislative measures) to ensure that indigenous peoples are consulted before concessions are granted for mining exploration or exploitation on lands that they traditionally occupy. In this regard, and also referring to its observation, the Committee expresses the hope that such measures will be adopted as part of the process to amend the legislation relating to the SEIA. The Committee also requests the Government to provide information on the consultations processes held with indigenous communities regarding the establishment of ECMPOs, including information on agreements concluded on the basis of these processes.

Article 25. Health. The Committee notes the information sent by the Government regarding the process of participation and consultation with regard to the regulations establishing the right of indigenous peoples to receive culturally relevant health care. The Committee notes that, as a result of the consultations, a national agreement was signed on 29 October 2016 between the indigenous peoples and the Ministry of Health. The agreement contains the undertaking made by the Ministry of Health to address the requests constituting the health agenda formulated by the indigenous peoples during the consultation process, including, inter alia, the strengthening of the “Indigenous peoples special health programme” and the recognition of indigenous health systems. The Government indicates that, further to the consultation process, the “Indigenous peoples plan” was adopted in March 2017, the objective of which is to help reduce unequal treatment in the health situation of indigenous peoples through the participatory formulation of health plans which recognize cultural diversity, promote complementarity among medical systems, and provide appropriate health services which meet specific epidemiological needs, rights and profiles. The Committee notes that, according to the March 2017 document describing the components of the above-mentioned plan, there are significant inequalities in access to health-care services in areas inhabited by indigenous peoples, as well as high mortality rates in all age groups.

The Committee requests the Government to provide information on the adoption of the regulations relating to the right of persons belonging to indigenous peoples to receive culturally relevant health care and, if applicable, on the measures taken in the context of such regulations. The Committee also requests the Government to include information on the measures taken in the context of the “Indigenous peoples plan” and their impact, including up-to-date information on the number and location of health centres for indigenous peoples.

Articles 23 and 28. Education. In its previous comments, the Committee noted the adoption of the “Bilingual intercultural education programme” and other measures to preserve and restore traditional indigenous languages, and asked the Government to provide information on progress made in the implementation of education programmes for indigenous peoples. In this regard, the Government indicates that in April 2018 the indigenous peoples national consultation process was launched, regarding the content of the curricula concerning the language and culture of indigenous peoples in basic education. The consultations include organizations, associations, communities and individuals belonging to indigenous peoples recognized by the Indigenous Peoples Act (No. 19.253 of 1993). The Committee requests the Government to provide information on the consultations held with indigenous peoples regarding the content of the curricula concerning the language and culture of indigenous peoples in basic education. The Committee also requests the Government to send detailed information on the manner in which the “Bilingual intercultural education programme” is implemented, and also up-to-date statistics on its impact.