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Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes the observations of the General Confederation of Labour of the Argentine Republic (CGT RA), received on 23 August 2022.
Article 1 of the Convention. Peoples covered by the Convention. The Committee notes that, in accordance with information provided by the National Institute of Indigenous Affairs (INAI) sent by the Government with its report, the country has more than 1,600 indigenous communities formally identified on the basis of their inclusion in the National Register of Indigenous Communities (RENACI) or in provincial registries, as well as by their inclusion in the territorial survey programme. The Committee also notes that, according to the information from the National Statistics and Census Institute, that in 2022, a new census of the population was held, the results of which have not yet been published. In the previous census of 2010, the indigenous population stood at 955,032 individuals on the basis of self-identification.
The Committee notes that the CGT RA refers in its observations to difficulties still encountered by unregistered indigenous communities to obtain legal personality before the RENACI. In this regard, the Government indicates that Decision No. 4811/96 handed down by the ex-Secretariat for Social Development in the Office of the President established the requirements for obtaining legal personality, which are: (i) information on the name and geographical location of the community; (ii) an account indicating ethnic, cultural and historical origins of the community, with available documentation; (iii) a description of their organizational rules and bodies, and the renewal of their authorities; and (iv) a list of community members with their degrees of kinship, and of the mechanisms for integrating or excluding community members. In conformity with section 4 of the Decision, the RENACI is to conclude agreements with the provincial governments to harmonize the criteria for the registration and recognition of indigenous communities.
The Committee also notes that the Government indicates that the process of obtaining legal personality as an indigenous community is less arduous than that of constituting a civil association. Such personality gives beneficiaries access to State plans and programmes. The Government also clarifies that the recognition of the indigenous communities through registration with the RENACI is declaratory and not constitutive act, given that the existence of the indigenous communities is not a consequence of, but pre-existing to, registration.
However, the Committee notes the Decision No. 1390 of 30 March 2023, adopted by the Chamber of Deputies of Mendoza province, which states that for scientific, historical and anthropological reasons, the Mapuche should not be considered to be indigenous people of Argentina within the meaning of section 75(17) of the National Constitution and international treaties. In this regard, the Committee wishes to recall that Article 1 of the Convention establishes the criteria for determining the peoples covered by the instrument. Thus, according to Article 1(1)(b), the Convention applies to peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. Article 1(2) establishes that self-identification as indigenous shall be regarded as a fundamental criterion for determining the groups to which the provisions of the Convention apply.
The Committee also recalls that in its previous comment, it noted the Supreme Court ruling of 10 December 2013 in which the Court referred to self-awareness (peoples’ awareness of their indigenous identity) as a subjective criterion for the identification of indigenous peoples. It further notes from information available on the website of the Ministry of Culture, that the Mapuche people are present and registered in the RENACI.
Therefore, the Committee requests the Government to provide information on:
  • the measures adopted to assist the indigenous communities that are still not registered with the National Register of Indigenous Communities to obtain legal personality, indicating the number of registrations that are in process, and how many have been refused;
  • the agreements concluded between the RENACI and provincial governments to harmonize the criteria for the registration and recognition of the indigenous communities;
  • the effect of Decision No. 1390 of 30 March 2023, adopted by the Chamber of Deputies of Mendoza on the recognition of the Mapuche people in Mendoza as a people covered by the Convention and enjoying its rights; and
  • the present number of individuals who identify as indigenous according to the latest census of 2022, if possible disaggregated by province and the people to which they belong.
Article 20. Conditions of employment and inspection. The Committee notes the absence of information in the Government’s report on the activities of the labour inspection services in sectors in which indigenous workers are occupied. It notes that in its observations, the CGT RA refers to worrying occupational safety conditions for workers coming from indigenous communities, the majority of whom work in the informal economy. The Committee refers to its comments under the Convention on Labour Inspection (Agriculture), 1969 (No. 129) and again requests the Government to report on the work of the labour inspection services in rural areas of the provinces with larger indigenous populations, indicating whether, in the context of their inspection visits, they have detected violations of the rights of indigenous workers and, if so, the penalties imposed.
Article 24. Access to social security. The Committee notes that the Government has been providing national identity documents to members of the indigenous communities to allow them access to social benefits and programmes, such as allowances distributed to vulnerable persons for food and housing. Moreover, decrees have been adopted to enable persons belonging to indigenous peoples, irrespective of their age, to register with the National Registry Office with the support of the INAI. The National Social Security Administration (ANSES) conducted visits in the indigenous communities of Salta, Chaco, Jujuy, Formosa, Misiones, Santiago del Estero, Neuquén, Chubut, Catamarca, La Rioja, Río Negro, Mendoza, Santa Fe, San Juan y Tucumán to assist indigenous community members with regard to the issuance of identity documents and access to universal child allowance programmes, disability pensions and productive projects for self-development. The Committee encourages the Government to continue to adopt measures to ensure that all persons belonging to indigenous peoples have an identity document allowing them access to social security programmes that answer to their needs. In this regard, the Committee requests the Government to provide information on the number of indigenous persons that have benefitted from these measures, and on the type of social benefits to which they have access.
Article 25. Health. The Committee notes that the Government reports on the establishment, in July 2016, of the National Health Programme for Indigenous Peoples (Ministerial Decision No. 1036-E/2016). The Programme is intended to deal with specific health problems affecting the indigenous population from an intercultural perspective and includes consultations with the indigenous communities on measures related to community health. Among its objectives, the Programme includes: (i) reducing inequalities as regards the state of health; (ii) reducing morbidity in the indigenous population by reinforcing preventive health care; and (iii) training indigenous community members to make use public health services that accept interculturality. The Government adds that, under the Programme, agreements have been signed with the provinces to train indigenous health officials chosen by the communities through a consultation process.
The Committee welcomes this measure, which is intended to improve access to health care for indigenous peoples by means of strengthening the community health system and collaborating with the groups concerned. The Committee encourages the Government to continue to pursue the adoption of measures of this type and requests it to continue to provide information on the results of the National Health Programme for Indigenous Peoples, and on any evaluation of the health needs of those peoples. It also requests the Government to provide information on the consultation processes undertaken with the indigenous peoples in this regard.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comments

The Committee notes the observations of the General Confederation of Labour of the Argentine Republic (CGT-RA), received on 23 August 2022 and 1 September 2023), as well as the observations of the Confederation of Workers of Argentina (CTA), received on 26 July 2023.
Articles 2 and 33 of the Convention. Indigenous policy, indigenous participation and coordinated and systematic action. The Committee notes from the Government’s report that the National Action Plan on Human Rights (PNADH) 2017–20 aimed at increasing coordination between State institutions in order to safeguard the rights of indigenous communities and to elaborate implementing regulations for Act 24.071 of 1992 approving the ratification of the Convention. It notes the Government’s statement that the National Institute for Indigenous Affairs (INAI), besides playing an inter-institutional and inter-jurisdictional role, is also involved in coordinating non-State actors in the integrated and autonomous development of indigenous communities. In this connection, the INAI participates in the Inter-ministerial Round Table for Indigenous Peoples (MIMPI), which brings together the technical teams from various state units, with the provincial governments of Salta, Formosa, Chaco, Misiones, Neuquén and Tucumán, on a fortnightly basis. The INAI and the MIMPI have created space for provincial dialogue with indigenous communities in order to generate opportunities that encourage the integrated and autonomous growth of the communities (for example, promoting artisanal crafts, land cultivation, livestock farming and tourism). The Government emphasizes that this methodology has helped it to understand and analyse territorial and indigenous issues and has resulted in better provincial level policy coordination.
The Committee also notes that the INAI has entered into dialogue with the authorities on indigenous peoples’ issues or on human rights at provincial level, with a view to ensuring the application of shared principles and standards for the implementation of the Convention within the framework of federalism, taking into account the criteria set out in the Supreme Court decision of 10 December 2013. That judgement establishes that the provinces have sufficient regulatory authority over the rights of indigenous peoples, in so far as this does not imply any contradiction with or lowering of the standards laid down in federal laws or regulations. The Committee notes that the Supreme Court, in a new decision of 28 December 2021 (FRE1168/2015/CS1), reaffirmed this principle and further emphasized that under the Constitution, authority divided between the provinces and the nation in respect of the rights of indigenous peoples is the reflection of a balanced federal regime that is able to take account of the multiple and various local realities in indigenous matters.
Moreover, the Committee notes that Decree No. 672/16 established the Consultative and Participatory Council of the Indigenous People of the Argentine Republic as the instance for indigenous representation and intercultural dialogue under the aegis of Secretariat for Human Rights and Cultural Pluralism of the Ministry of Justice and Human Rights. The Council’s objectives include: (i) promotion of areas of interaction between the different ministries and public bodies; (ii) adoption of legislative measures for applying the Convention, including on prior consultation and indigenous community property; (iii) implementation of education and health programmes for indigenous peoples; and (iv) redefining indigenous policy with a view to ensuring the participation of the peoples concerned.
Recalling the importance of coordinated and systematic action as a basis to ensure the rights of indigenous peoples enshrined in the Convention, the Committee requests the Government to continue to adopt measures to ensure communication and coordination between the federal government and the different provincial governments in respect of implementation of the Convention for which responsibility lies with the provinces. It also requests the Government to: (i) continue to make efforts to adopt regulations for the implementation of Act No. 24.071; (ii) report on the measures and programmes proposed and adopted within the Inter-ministerial Round Table for Indigenous Peoples and their outcomes; and (iii) take the necessary measures to ensure the good functioning of the Council for Indigenous Participation, indicating how often it meets, how many peoples are represented and how it coordinates its action with the different government entities.
Article 3. Human rights. 1. Use of violence at protests. The Committee notes that the CGT-RA and the CTA report in their observations instances of violence and the excessive use of force by the police during indigenous peoples’ protests against the constitutional reform of Jujuy Province in 2023. It also observes that the Inter-American Commission on Human Rights (IACHR) referred to the scale of the provincial security forces’ response to those demonstrations which resulted in several injuries (IACHR press release of 20 June 2023). The Committee notes that the Government has not responded to the allegations of the CGT-RA and the CTA.
The Committee notes the alleged instances of violence with deep concern. The Committee recalls that indigenous and tribal peoples must be able to exercise the right to protest in defence of the rights enshrined in the Convention, without recourse to violence, and the Government must adopt appropriate measures to avoid any type of violence in this regard. Moreover, in the context of public demonstrations, the authorities must only make use of public force where the public order is genuinely threatened and intervention by the police must be proportionate to the threat to public order that it seeks to control. The Committee requests the Government to report on the outcomes of the investigations into the alleged facts and trusts that such investigations will make it possible to determine responsibilities and impose the appropriate penalties.
The Committee also notes that the United Nations Committee on the Elimination of all Forms of Racial Discrimination (CERD) in its 2023 concluding observations on Argentina expressed concern regarding: (i) the persistence of the practice of racial profiling by the police forces and other law enforcement officials in particular against persons belonging to indigenous peoples; and (ii) the numerous allegations of violence committed by the police and private security companies, including some that resulted in the death of the victim, which disproportionately impact on persons belonging to indigenous peoples (CERD/C/ARG/CO/24-26). The Committee requests the Government to take all necessary measures to ensure a climate free from physical and psychological violence in which indigenous peoples and their representatives may defend the rights guaranteed them under the Convention.
2. Indigenous women. The Committee notes from information provided by the Ministry of Culture, that the Ministry has launched a project entitled “Mujeres de Raíz” (Grass roots Women), which creates spaces for dialogue and support for indigenous women. This accompaniment seeks to fortify the nexus between indigenous women and their community, spreading information on public policies that benefit them and reinforcing their autonomy (Ministry of Culture press release of 5 September 2022).
However, the Committee notes with concern from the CERD concluding observations, that there are certain complaints of abuse and sexual violence suffered by women and girls and committed by Creole men, particularly in the north of the country, such as the case of the women and girls of the Wichí people in Salta. Furthermore, according to the same observations, in October 2022, seven women and six girls and boys of the Mapuche Lafken Winkul Mapu community in Villa Mascardi in the province of Rio Negro were detained incommunicado for at least 72 hours in the context of a violent entry and search raid (CERD/C/ARG/CO/24-26). Regarding the latter case, the Committee notes that according to information available on the website of the Public Prosecutor’s Office, the Federal Prosecutor’s Office of Bariloche is carrying out investigations in relation to the events that took place in Villa Mascardi. The Committee requests the Government to provide information on the results of these investigations.
Furthermore, the Committee urges the Government to adopt the necessary measures to ensure the physical and psychological integrity of the women and girls belonging to indigenous communities and, if applicable, to investigate the complaints of sexual violence against them committed.
Article 6. Consultation. In reply to the Committee’s previous comments regarding the absence of a regulatory framework for consultation, the Government indicates that it is in the process of regulating the right to prior consultation of indigenous communities and that a preliminary draft law will itself be subject to prior consultation among the indigenous communities of the country through a “consultation on the consultations” process. The Government points out that, while there are no regulations governing the holding of consultations, such consultations have nonetheless been held in the framework of productive and energy projects of national importance. INAI supported indigenous communities during those consultations in their dialogue with the provincial governments and the enterprises responsible for the projects. The Government adds that consultations have been convened by provincial governments, and these were governed by the regulations of the respective jurisdictions. In this connection, the government of Rio Negro province is working with the Indigenous Community Development Council and with the Coordinator of the Mapuche Parliament to formulate a protocol for consultations, and that Parliament is also consulting with the different communities in the province.
The Committee notes that the CGT-RA and the CTA maintain in their observations that the indigenous peoples of the province of Jujuy were not consulted in respect of the constitutional reform of the province, approved in June 2023. According to those organizations, the reform contains provisions which are contrary to the Convention, in particular:
  • section 36, which recognizes the right to private property and provides that its exercise shall not challenge the social function or be detrimental to health, safety, freedom or human dignity;
  • section 50, which provides that the province shall protect indigenous peoples through appropriate legislation that will lead to their integration, and economic and social progress;
  • section 68, which recognizes the full dominion and exclusive ownership of the province over the natural resources existing in its territory against any undue interference by the nation or other provinces, promoting the sustainable use of these resources and common goods for the benefit of human development and the progress of the population;
  • section 74, which provides that the State shall promote the investigation, development, production and use of knowledge and tools that apply biotechnology with a view to creating goods and services that improve the quality of life of persons;
  • section 94(2), which recognizes land as a labour and production good, and provides that the law shall regulate the administration, disposition and use of public land that may be put to productive use, establishing to that end development regimes that promote territorial development and the socioeconomic interest of the province.
In this regard, the Committee notes from an Opinion of the Attorney General issued on 4 August 2023 (CSJ 1309/2023), that the State filed a claim of unconstitutionality in respect of several provisions of the reformed constitution of Jujuy province, including section 94 cited above, on grounds of contravening Convention No. 169. In his Opinion, the Attorney General considers the Supreme Court competent to pronounce on such a claim. The Committee notes that the Government has not responded to the allegations. It therefore has no further information regarding the process of the Jujuy constitutional reform, or whether indigenous peoples are being consulted thereon.
The Committee also notes, from a reading of sections 36, 68, 74 and 94(2) of the reformed Jujuy constitution, that these sections clearly deal with general issues, rather than specific provisions on indigenous peoples or their rights. Nevertheless, the Committee considers that the implementation of the constitution, and of the regulations to be adopted for that purpose, must avoid directly affecting the rights of indigenous peoples recognized under the Convention, specifically in respect of property and land traditionally occupied by these peoples, and as such must be subject to consultation. In this regard, the Committee recalls that the consultation provided for in Article 6 of the Convention is a means of institutionalizing dialogue on questions that affect indigenous peoples, to ensure inclusive development processes, reduce tensions and prevent conflict. Consultations must be undertaken in good faith and allow full expression of the opinions of the peoples concerned, with a view to influencing the outcome of the measures under consultation.
Moreover, with specific reference to section 50 of the reformed constitution of Jujuy, which refers to the adoption of appropriate legislation that will lead to the integration and social and economic progress of indigenous peoples, the Committee wishes to recall that the objective of Convention No. 169 is to replace a focus based on integration with one based on the recognition of the right of indigenous peoples to decide on their own development priorities. Accordingly, this principle must be the basis of all provincial legislation adopted with regard to indigenous peoples.
Consequently, the Committee urges the Government to take the necessary measures to ensure:
  • the adoption of a national regulatory framework for consultation, announced by the Government, which must be subject to prior consultation with the indigenous peoples concerned;
  • that consultations under the competence of the provincial governments, as well as any provincial regulations adopted governing such consultations, are held in coordination with the INAI as the institution responsible for ensuring coordinated action in implementing the rights provided under the Convention.
With regard to the reformed constitution of the province of Jujuy, the Committee requests the Government to take the necessary measures to ensure that any law or regulation adopted to give effect to sections 36, 50, 68, 74 and 94(2) of that constitution, in so far as they directly affect the rights of indigenous peoples, are duly subject to consultations with the indigenous peoples of the province, in conformity with Article 6 of the Convention.
Article 14. Lands. In its previous comments, the Committee noted that Act No. 26.160 of 2006 declaring the emergency regarding the possession and ownership of land traditionally occupied by the indigenous communities entered in the National Register of Indigenous Communities. Act No. 26.160 provides for the suspension of rulings and administrative land eviction orders for an initial period of four years, during which the territorial survey and titling in the name of the communities can take place, under the coordination of the INAI. The Committee notes that this provision has been extended on several occasions due to non-completion of the survey and titling process.
The Committee notes the Government’s indication that, under Act No. 26.160 and its respective extensions, the territorial, legal, technical and cadastral survey of 479 communities, amounting to approximately 2,983,259 hectares has been completed (24 hectares in Buenos Aires, 2 in Catamarca, 14 in Chaco, 36 in Chubut, 6 in Córdoba, 2 in Entre Ríos, 1 in Formosa, 120 in Jujuy, 6 in La Pampa, 7 in Mendoza, 43 in Misiones, 6 in Neuquén, 51 in Río Negro, 52 in Salta, 5 in San Juan, 7 in Santa Cruz, 29 in Santa Fe, 54 in Santiago del Estero, 1 in Tierra de Fuego and 14 in Tucumán), 467 communities are in the process of being surveyed.
The Committee also notes that Act No. 26.160 was subject to a new extension until November 2023 under Decree 805/2021. The Government also indicates that, under the initiative of the INAI, consultations have taken place with the provinces and with the indigenous territorial organizations to draw up a preliminary draft of a law on community ownership. There are currently several draft laws under debate before the Legislature. Moreover, the Government indicates that the Executive has expressed its willingness to reach a federal agreement that will enable the State and the provinces to come to a consensus on the regulation of community ownership.
The Committee notes from the CGT-RA’s observations that the question of the regularization of indigenous lands remains an ongoing issue of concern which has given rise to instances of violence and the eviction of indigenous communities in Patagonia, as well as in the north-east and north-west of the country, which have yet to be clarified.
It also notes that, in its report on its visit to Argentina in 2023, the United Nations Working Group on business and human rights refers to: (i) the legal risk for indigenous communities arising from continuous extensions of Act No. 26.160; (ii) the slow pace of the territorial survey process in indigenous communities; (iii) complaints of violent evictions of indigenous communities to make way for large-scale real estate and resource extraction projects.
The Committee further notes the ruling of the Inter-American Court of Human Rights of 24 November 2020, in the case of the Indigenous Community Members of the Lhaka Honhat (our lands) Association vs. Argentina, in which the Court determines that Argentina does not have an adequate body of regulations in place to secure indigenous peoples’ right of community ownership satisfactorily.
The Committee notes with concern the apparent slow pace of the process of territorial survey and the titling of lands traditionally occupied by indigenous peoples, to which the continuous extensions of Act No. 26.160 bear witness. This has given rise to a context of legal uncertainty which imperils respect of the rights of ownership and possession of those peoples over their lands, as recognized under Article 14 of the Convention. Consequently, the Committee urges the Government to make every possible effort to complete the process of territorial survey and titling of the indigenous communities of the country provided under Act No. 26-160, in coordination with the INAI and the respective provincial governments. It requests the Government to provide updated information on progress made regarding the survey and regularization (identification, demarcation and titling) of community land by province; and while the process is ongoing, to take the necessary measures to establish mechanisms for the resolution of conflicts related to the occupation of the land between the indigenous peoples and third parties.
Articles 20 and 21. Admission to employment and training programmes. The Committee notes with interest that the National Plan for Indigenous Peoples: “Promote better jobs through integrated employment and training programmes” was adopted by the Ministry of Labour, Employment and Social Security, in March 2023. The Committee notes that the preparation of the plan involved consultations with the indigenous peoples in various provinces, as well as an analysis of the difficulties faced by those peoples in the labour market. Such difficulties included: (i) restricted access to employment and training opportunities due to the geographical distance separating the indigenous communities from the urban centres where the employment offices and training institutions are located; (ii) the institutions and local actors lack and understanding of cultural differences, resulting not only in a scarcity of offers, but also in persistent discriminatory attitudes towards the indigenous peoples; (iii) training and employment programmes poorly aligned with the specific needs of the indigenous communities; (iv) communication problems due to the predominant use, particularly among indigenous women, of indigenous languages; and (v) institutional weakness and poor access to technical assistance activities for indigenous communities. To overcome these challenges, the Plan includes actions to promote the inclusion of indigenous peoples, such as working with indigenous organizations to prepare vocational training proposals, taking account of the need to make entry conditions and requirements more flexible; strengthening employment offices in indigenous communities; and the provision of cash allowances to promote and maintain participation by highly vulnerable indigenous persons in vocational and employment training activities.
The Committee notes, according to the statistical information included in the Plan, that in the period from January 2015 to June 2021, a total of 4,731 indigenous persons took part in labour market integration programmes, 8,555 in vocational training activities and 899 in self-employment programmes. The Committee notes that a mandatory quota of 25 per cent indigenous participation was applied in respect of vocational training and employment programmes provided by the National Institute of Agricultural Technology.
The Committee requests the Government to continue providing information on the results of the measures implemented under the National Plan for Indigenous Peoples, giving examples of vocational training and labour market integration programmes formulated in cooperation with indigenous communities. It also requests the Government to provide, to the extent possible, updated statistical information on the number of persons belonging to indigenous peoples who are unemployed or under-employed.
The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the General Confederation of Labour of the Argentine Republic (CGT RA) received on 23 August 2022. In its observations, the CGT RA refers, among other aspects, to the persistent failure to carry out the territorial studies necessary to determine the lands that indigenous peoples have traditionally occupied, as provided for in Law 26.160 of 2006, as well as to acts of violence linked to the lack of land regularisation. The CGT RA also refers to the worrying safety conditions at work and high levels of labour informality affecting indigenous workers. The Committee requests the Government to provide its reply to the observations submitted by the CGT RA.
The Committee also notes that the Government’s report due this year has not been received. The Committee therefore requests the Government to provide a detailed report containing updated information on the issues raised in its previous comments.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Article 1 of the Convention. Peoples covered by the Convention. The Government indicates in its report that since 2001, the National Population, Household and Housing Census includes membership of an indigenous people among the variables to be taken into account in replying to the question on self recognition as a descendant of an indigenous people. In the period from 2004 to 2005, a total of 600,329 inhabitants recognized themselves as members or descendants of indigenous peoples. In 2010, according to the self-recognition criterion, the indigenous population comprised 955,032 inhabitants. The Committee notes that the ruling of 10 December 2013 (C.1324.XLVII), handed down by the Supreme Court of Justice of the Nation, refers to self-awareness (peoples’ awareness of their indigenous identity) as a subjective criteria for the identification of indigenous peoples. The Confederation of Workers of Argentina (CTA Autónoma), reports that the national legislation takes into account only indigenous communities registered as civil associations under private law, and expresses concern at the formalities the communities have to complete in order to obtain legal status. The Committee requests the Government to continue to supply information on the manner in which it is ensured that all the peoples included in the scope of the Convention are protected by the measures for its implementation. Please indicate how the Government ensures that indigenous communities that have not formed civic organizations are afforded the protection of the Convention.
Articles 2 and 33. Coordinated and systematic action. The Government indicates in its report that the National Institute of Indigenous Affairs (INAI) has concluded agreements with national and provincial bodies with a view to encouraging the formulation of strategies for indigenous peoples, with the involvement of the National Council for Indigenous Participation (CPI). The CTA Autónoma indicates that the need for harmonization, by the provincial governments, of the minimum standards of the rights laid down in the Convention. The Committee notes that the ruling of 10 December 2013 (C.1324.XLVII) handed down by the Supreme Court of Justice of the Nation held that both the nation and the provinces have sufficient regulatory authority over the rights of indigenous peoples, in so far as this does not imply, on the part of provincial states, any contradiction with or lowering of the standards laid down in federal laws or regulations. The Committee requests the Government to continue to send information on the measures taken to promote coordinated and systematic action between the nation and the provinces regarding the subjects covered by the Convention.
Articles 8–12. Customary law. Legal proceedings. The CTA Autónoma indicates that there are no laws or regulations to ensure that indigenous peoples may use their own methods of dispute settlement or that their customary law is recognized by state bodies. The Committee requests the Government to provide examples of judicial decisions that have taken account of the customs or customary laws of indigenous peoples.
Article 14. Lands. Suspension of evictions. In its observation of 2013, the Committee noted that Act No. 26894, published on 21 October 2013, granted an extension until 23 November 2017 of the suspension of evictions pending completion of the land survey of indigenous communities provided for in Act No. 26160, published on 29 November 2006. The Government indicates that legal services have been put in place to bolster the process to organize and defend the communities faced with attempts to evict them. The INAI lends support to provincial programmes that seek to regularize indigenous ownership in public lands. The CTA Autónoma indicates that orders for the eviction of indigenous peoples continue to be issued, in breach of Act No. 26160. The Committee requests the Government to provide up-to-date information on the suspension of evictions provided for in Act No. 26160 and Act No. 26894, as well as on the measures taken to ensure their implementation.
Province of Mendoza. Huarpe Milcallac people. Land regularization. The Government indicates that in January 2015, pursuant to Provincial Act No. 6920 of the province of Mendoza, the plan for the mensuration of areas liable to expropriation with a view to regularizing the lands of the Huarpe Milcallac people was entered in the provincial land register of Mendoza. The Committee requests the Government to continue to provide information enabling it to ascertain the manner in which the provisions of the Convention are applied in Mendoza, indicating in particular the progress made in the land regularization process.
Province of Neuquén. Paichil Antriao Mapuche community. Protection of social, cultural, religious and spiritual values and practices. Lands. The Government indicates that national Act No. 26160 is applied in the province of Neuquén through the implementation of the programme for the survey of lands occupied by the Mapuche communities of the province of Neuquén. To that end, an implementing committee has been set up comprising representatives of the provincial government and the INAI. One of its functions is to coordinate the land survey activities with the Neuquén Mapuche representatives on the CPI and the area lonkos (chiefs). The Committee notes that these activities have covered 27 communities in the province, on the proposal of the indigenous representatives on the implementing committee. With regard to the Lof Paichil Antriao community, the INAI took part in the Tawun (assembly) for the confirmation of the community authorities that took place in July 2015 in the locality of Villa la Angostura. However, the lands of that community have still not been regularized. The Committee requests the Government to continue to provide up-to-date information on progress made in the process to identify and regularize indigenous community lands in Neuquén. It also asks the Government to report on developments in the situation of the disputed piece of land in Villa la Angostura and the measures taken to overcome the difficulties encountered in recognizing and protecting the social, cultural, religious and spiritual values and practices of the Mapuche community.
Province of Río Negro. Consultation and participation. Traditional activities. The Committee notes that progress has been made in the land survey of 63 indigenous communities in Río Negro. The Government indicates that the provincial government has taken steps to facilitate the survey for communities that have not yet been covered. In its 2011 observation, the Committee took note of observations made in July 2008 by the Education Workers’ Union of Río Negro, reporting that the provincial authorities had granted permits for exploration in river basin areas, authorizing the establishment of protected natural areas without prior consultation of the Mapuche peoples inhabiting the area and without recognizing the rights of the Quintupuray and Lof Mariano Epufel Mapuche communities over the lands they traditionally occupy. The Committee requests the Government to continue to provide information on progress made in regularizing indigenous community ownership in the province of Río Negro and on the manner in which the consultation and participation procedures laid down in the Convention are conducted at provincial level. The Committee also requests the Government to indicate the measures taken to protect the rights of the Quintupuray and Lof Mariano Epufel Mapuche communities. Please also report on the issuing of marks and signs certificates to indigenous stockbreeders in Río Negro.
Province of Tucumán. Protection of fundamental rights. Chuschagasta community. With regard to the investigations into the death of an indigenous leader and the injuries of two members of the Chuschagasta community which occurred in October 2009, the Government indicates that, with a view to carrying out criminal proceedings relating to these crimes, the National Institute for Indigenous Affairs (INAI) carried out visits to observe the day-to-day living conditions of the community. The Committee requests the Government to continue to provide information on the proceedings against the perpetrators of the criminal offences committed in October 2009 against members of the Chuschagasta community, including on the eventual imposition of sanctions.
Quilmes indigenous community. Evictions. The Government recalls that by a decision of 3 September 2009 the Supreme Court of Justice of Tucumán suspended the eviction order affecting the Quilmes indigenous community and ordered mediation between the parties. Evictions have been suspended since 2009 and the 40 families belonging to the community hold the ownership of the four hectares in dispute. The Committee notes that the land survey of the Quilmes indigenous community was conducted in the framework of a specific agreement concluded by the INAI, the provincial Human Rights Secretariat and the People’s Ombudsperson of Tucumán. The report resulting from the survey was delivered to the community in August 2014. The Committee requests the Government to continue to send up-to-date information on the dispute over the lands possessed by the Quilmes indigenous community, and on progress made in the process to survey and regularize indigenous community lands in Tucumán.
Article 20. Recruitment and conditions of employment. The CTA Autónoma indicates that indigenous workers account for the majority of informal jobs in textiles and rural activities (fruit growing and horticulture), that the inspection services are inadequate in areas with high indigenous employment and that there is no relay of information on the rights of indigenous workers. The Committee notes that, at national level, the Ministry of Labour, Employment and Social Security has posited the inclusion of the indigenous population in the employment and training insurance schemes and in the More and Better Work for Youth Programme, offering varied training to facilitate job seeking as well as funding for undertakings. Furthermore, the INAI signed an agreement with the National Agricultural Technology Institute to promote development of indigenous rural communities that is based on intercultural dialogue and participation. The Committee requests the Government to report on the measures taken to ensure adequate labour inspection in areas and sectors employing men and women workers belonging to indigenous peoples.
Article 24. Social security. The Government indicates in its report that the indigenous peoples are covered by policies and programmes on social inclusion, labour market integration and social security that aim to achieve universal coverage. The Committee notes that the INAI plans to conduct a survey of 1,000 indigenous families to ascertain their living conditions. The Committee requests the Government to report on the results of the surveys on the living conditions of indigenous families, and on the impact of the measures taken to include indigenous peoples in social inclusion programmes and social security schemes.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations by the Confederation of Workers of Argentina (CTA Autonomous) and the General Confederation of Labour of the Argentine Republic (CGT RA), received on 1 and 2 September 2015 respectively.
Articles 6 and 15 of the Convention. Consultation. With regard to the observations made in 2012 by the International Organisation of Employers (IOE) expressing concern at the difficulties of applying and interpreting the prior consultation requirement, the Committee notes that the Government indicates in its report that it understands the rationale behind the IOE’s observation in that the requisite prior conditions must be met in order for the Convention to be applied effectively. The Government further indicates that forums for consultation are being built progressively and that the process is a medium to long-term one. The Government says that the Convention is a standard to be achieved, which means establishing the necessary agreements, areas of action and instruments for its implementation. The Committee notes that the CTA Autonomous, for its part, expresses concern at the lack of adequate legislative measures to ensure observance of the rights of indigenous peoples over natural resources and to facilitate prior consultation. The Committee requests the Government to continue to provide information on the evolution of the consultation procedures and on the manner in which the rights of indigenous peoples, in particular with respect to their rights to natural resources, are safeguarded.
Articles 6 and 7. Council for indigenous participation. With regard to the functioning of the Council for Indigenous Participation (CPI), the Government indicates that the amendment of the Regulation on the Functioning of the Council for Indigenous Participation was approved by Resolution No. 737/2014, adopted by the National Institute of Indigenous Affairs (INAI) on 5 August 2014. The Committee notes with interest that, pursuant to the amendment, the CPI is recognized as a body for consulting the communities of the various indigenous peoples that live in Argentina. With regard to the concern expressed by the CTA Autonomous, on the representativeness of CPI, the Committee notes that, according to the Government, between July 2013 and June 2015 the INAI called on 635 communities to elect representatives to the CPI, and as a result it is composed of 134 representatives belonging to 33 peoples. The Government indicates that the National Coordinating Committee of the CPI has set up six working committees which discuss, among other matters, issues related to indigenous policy and legislation, the land survey, legal status and “well-being” (health, education, housing), cooperatives and living conditions. The Committee requests the Government to continue to provide information on the manner in which the consultation and participation of indigenous peoples is ensured in the framework of the CPI.
Article 14. Lands. With regard to the inclusion of indigenous community ownership in the national legislation, the Committee notes with interest that section 9 of Act No. 26994, published on 8 October 2014, approving the Civil and Commercial Code of the Nation, provided that “the rights of indigenous peoples, particularly community ownership over the lands they traditionally occupy and such other lands as are suitable and adequate for human development, shall be the subject of a special law”. Furthermore, section 18 of the Civil and Commercial Code of the Nation establishes that “Recognized indigenous communities have the right to community ownership and possession over the lands they traditionally occupy and such other lands as are suitable and adequate for human development as established in the law, in accordance with the provisions of article 75(17) of the National Constitution”. The Government reports that following an analysis and discussion that took place between February and July 2015 in a process that included working sessions with provincial governments, the representatives of indigenous communities, the Coordination Council, the Meeting of Indigenous Peoples’ Territorial Organizations and the Union of the Diaguita people of Tucumán, a draft bill was prepared for the implementation of indigenous ownership. The draft bill was sent to the national plenary of the CPI in July 2015 and is to be submitted to parliament. The Committee requests the Government to provide information on any impact the Civil and Commercial Code of the Nation has had in terms of promoting the rights of indigenous peoples, and on developments regarding the special bill on indigenous ownership.
Survey and regularization of land. The Government indicates that the National Programme for the Cadastral Survey of Indigenous Communities is being carried out by means of agreements and arrangements for joint implementation in the provinces of Buenos Aires, Chaco, Chabut, Formosa, Misiones, Neuquén and Río Negro. In provinces where there is no agreement and in communities requesting priority treatment, implementation of the cadastral survey is centralized. The Committee notes with interest the information sent by the Government to the effect that some 7,193,789 hectares have been surveyed, accounting for nearly 80 per cent of the number of hectares initially estimated and covering a total of 662 communities distributed through 20 provinces. The Committee requests the Government to continue to provide up-to-date information on the processes under way to survey and regularize indigenous community lands in each of the provinces of the country.
Province of Formosa. Navogoh Qom Community (La Primavera). Land demarcation. The CGT RA, concerned at the situation of the Navogoh Qom community, expresses the hope that the national and provincial authorities will hear the members of the community and that the complaints relating to the occupation of community lands for the construction of housing complexes without regard for the community’s cultural norms will be elucidated. The Government indicates that between July and December 2013, the cadastral survey was carried out in the Potae Napocna Navogoh Qom community, but that only part of the community has endorsed the survey’s results. The Committee requests the Government to provide information on the manner in which it applies the provision of the Convention in Formosa and protects the rights of the Navogoh Qom community. It further requests the Government to report on developments in the cases currently before the Supreme Court of Justice of the Nation regarding the land disputes affecting the Navogoh Qom community.
The Committee is raising other matters in a request addressed directly to the Government.

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

With the report that it presented in February 2013, the Government included two judicial rulings as examples of the effect given to the Convention. One of the rulings, handed down by a court of Esquel (Chubut) on 5 October 2012, upheld the action brought by a Mapuche community to retain its wintering rights on a plot of land for which it held and exercised the right of possession. The other ruling, handed down by a court of Zapala (Neuquén) on 9 November 2012, declared irreceivable an action brought against the right of possession of a plot of land that had traditionally been occupied by another Mapuche community. The Committee invites the Government in its next reports to continue sending judicial rulings that have resolved matters of principle with respect to the rights protected by the Convention (Part IV of the report form).
Identification and regularization of the status of lands. The Committee notes with interest the detailed information sent by the Government in November 2013 on the situation regarding the land status identification process, which commenced in 2006. A total of 950 indigenous communities have been identified, of which 465 have already had the status of their territories determined. The land status identification process will apply to an estimated 9 million hectares, and identification has already been completed for almost half that total. Community/individual title to land has been recognized in the provinces of Buenos Aires, Catamarca, Chaco, Chubut, Formosa, Jujuy, La Pampa, Mendoza, Misiones, Neuquén, Río Negro, Salta, San Luis, Santa Cruz, Santa Fe, Tierra del Fuego and Tucumán. Work has been completed in the provinces of Buenos Aires (Guaraní and Toba communities), Catamarca, Córdoba, Entre Ríos, La Pampa, Mendoza, San Juan, Santa Cruz and Tierra del Fuego. In its observations of 2013, the Confederation of Workers of Argentina (CTA) mentions a study by the Aboriginal Pastoral Team that apparently shows that there was some delay in officially recognizing the current, traditional and public occupation of the lands. The Committee requests the Government to include information in its next report that would allow it to examine the progress that has been made towards ensuring the application of Article 14 of the Convention in each of the provinces.
Formosa. Qom Navogoh La Primavera community. Demarcation of lands. Referring to its earlier comments, the Government recalls the precautionary measures granted on 21 April 2011 by the Inter-American Commission on Human Rights (MC 404/10) which called for the necessary steps to be taken to guarantee the life and physical integrity of the members of the Qom Navogoh La Primavera community against potential threats, aggression or harassment by members of the national and provincial police or by other state agents. In its report received in February 2013, the Government refers to several meetings with national and provincial authorities that were attended by representatives of the CTA and of human rights organizations. In June 2011, elections were held to ratify the authority of the community leader, and in August 2011 the INAI granted the Qom Navogoh La Primavera community legal personality. The Government refers to the ongoing land dispute between the indigenous community and the national authorities of the Río Pilcomayo National Park. In August 2012, the INAI signed a framework cooperation agreement with the Institute of Aboriginal Communities of the Province of Formosa to proceed with the effective application of the Convention in Formosa. The Government also indicates that on 7 March 2012 the Supreme Court of Justice held a public audience that was attended by representatives of the government of the province of Formosa and of other parties involved, to examine the situation denounced by the Qom Navogoh community with respect to the steps that the provincial authorities had started to take to divide up and demarcate a piece of land to which the community laid claim. The CTA again raised the matter of the Qom Navogoh in the observations which were transmitted to the Government in September 2013. The Committee invites the Government to report on the ruling of the Supreme Court with respect to the matters raised by the Qom Navogoh community. The Committee hopes that its next report will contain information that will enable it to assess how the Convention’s provisions are being applied in Formosa and how the rights of the Qom Navogoh community are being protected.
Mendoza. Huarpe Micallac people. Regularization of lands. Referring to earlier comments the Government provides information on the registration of the legal personality of the Huarpe Micallac communities in the departments of Las Heras and Lavalle in the province of Mendoza and of separate meetings held in 2010, 2011 and 2012 to promote the implementation of Mendoza’s Provincial Act No. 6920 of August 2001. This provincial Act recognized the ethnic and cultural pre-existence of the Huarpe Micallac people and ordered the transfer of ownership of certain expropriated lands to the community. In November 2009 the INAI signed a framework cooperation agreement with the Secretariat for the Environment of the Province of Mendoza. In October 2012, the INAI again allocated resources to update the study of titles of ownership and to re-measure perimeters in pursuance of the Provincial Act. The INAI states that the government of Mendoza’s undertaking to apply the Provincial Act providing for the regularization of the Huarpe Micallac communities’ lands is part of the state policy of historical reparation promoted by the national Government. The INAI indicates that the government of Mendoza is in a position to carry out immediately administrative measures to effect expropriations that will highlight the determination of the provincial executive to comply with the Provincial Act. The Committee invites the Government to continue providing information so as to enable it to examine how the provisions of the Convention are being applied in Mendoza.
Neuquén. Paichil Antriao Mapuche community. Protection of social, cultural, religious and spiritual values and practices. Lands. The Committee takes note of the detailed information provided by the Government on the recognition of the rights held by the Lof Paichil Antriao Mapuche community in Villa La Angostura (department of Los Lagos) since 18 September 1902. Since 2013, the community has reorganized itself in order to defend its territorial space by submitting formal claims and instituting administrative proceedings to have the areas restored to it that were taken away during the latter decades of the twentieth century. The INAI organized an intercultural dialogue in May 2005 and is providing the community with assistance under the programme to strengthen the community and ensure its access to justice. In December 2009, an eviction ordered by a provincial judge took place and provincial police units were installed on the community lands. The Government recalls that the Inter-American Commission on Human Rights (IACHR) adopted precautionary measures on 6 April 2011 (MC 269/08) in favour of members of the community who had requested that steps be taken to guarantee that the judicial measure protecting a sacred site known as Rewe, located on a disputed piece of land, not be lifted until the IACHR rules on the merits of the case. In the observations which were sent to the Government in September 2013, the CTA mentioned the lack of consultation of the Mapuche communities that have settled in the area of the Vaca Muerta oil field. The Committee invites the Government to provide information on developments regarding the disputed piece of land in Villa La Angostura and of the measures taken to resolve the difficulties referred to in recognizing and protecting the social, cultural, religious and spiritual values and practices of the Mapuche community (Article 5 of the Convention). The Committee hopes that the Government’s next report will contain information that will also allow it to examine the measures taken by the Neuquén authorities to ensure the application of Articles 6 and 7 (consultation and participation) and Part II of the Convention (land and minerals or sub-surface resources under the dominion of the province of Neuquén).
[The Government is asked to reply in detail to the present comments in 2015.]

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

The Committee takes note of the reports presented by the Government in February and November 2013 containing detailed information supplied by the National Institute for Indigenous Affairs (INAI) and the Government’s response to certain matters raised by the Confederation of Workers of Argentina (CTA).
Communication from the International Organisation of Employers (IOE) (2012). New observations from the General Confederation of Labour (CGT) and the Confederation of Workers of Argentina (CTA) (2013). The Committee recalls that in August 2012 the IOE presented observations on the application in law and in practice of the consultation requirement embodied in Articles 6, 7, 15 and 16 of the Convention. In September 2013, the Office transmitted to the Government the new observations formulated by the CGT and the CTA. The Committee invites the Government in its next report to forward any comments it deems appropriate on the IOE’s observations and on the matters raised by the CGT and the CTA. It further invites the Government, in preparing its next report, to consult the social partners and indigenous organizations on the issues raised in these comments and to provide information on the results achieved by the measures taken to give effect to the Convention (Parts VII and VIII of the report form).
Council for Indigenous Participation (CPI). Consultation and participation. The Government states that the Coordination Council, provided for in Act No. 23302 of 1985 concerning indigenous policy and support for aboriginal communities, is no longer functioning, and that the Council for Indigenous Participation (CPI), which is part of the INAI, has initiated the necessary steps for consultation. The Committee notes the Regulations for the operation of the CPI, which were adopted in March 2011. The CPI consists of two representatives elected by each community assembly of indigenous peoples and plays a major role in the National Programme for Identification of the Status of Indigenous Community Lands and the Commission for Analysis of the Implementation of Indigenous Community Ownership. In its most recent observations, the CTA raises questions about the functioning of the CPI. The Committee invites the Government to continue to provide information in its next report on how the effective participation of indigenous peoples is ensured in the CPI and in the other institutions administering the programmes that concern them (Articles 2 and 33 of the Convention). The Committee also hopes that the report will contain further information on how it has ensured the existence of appropriate prior consultation procedures for the effective participation of indigenous peoples in decisions that are liable to affect them directly (Articles 6 and 7).
Indigenous peoples rights in a single draft Civil and Commercial Code. The Committee takes note that the Government opted to incorporate certain provisions on indigenous community ownership that were analysed by the CPI in a revised, updated and combined draft Civil and Commercial Code that was sent to Congress in July 2012. The Government explains that their inclusion in a Civil and Commercial Code ensures greater consistency in the treatment of indigenous rights. Moreover, if they are incorporated in a national Civil and Commercial Code indigenous rights take precedence over provincial legislation. The report received in February 2013 adds that, given that “the provinces have the original dominion over the natural resources existing in their territory” (article 124 of the 1994 Constitution), any state policy regarding land traditionally occupied by indigenous communities must necessarily be agreed upon jointly by the national Government and the provincial governments. The absence of any mention of collective indigenous rights in the Civil Code that has been in operation since 1871 jeopardized the effective recognition of the ethnic and cultural pre-existence of Argentina’s indigenous peoples that is referred to in article 75, paragraph 17, of the Constitution. The Government also mentions rulings handed down by higher courts and provincial authorities that in some cases argued that the provisions of the Constitution had no operational content but were merely programmatic. The Government acknowledges in its report of November 2013 that if the rights of indigenous communities are incorporated in the new Code it would still be necessary to adopt new legislation on indigenous community ownership and the regulation of consultation and participation. In its latest observations the CTA considers that the Civil Code subjects the indigenous institutions to constant state control and approval, and it supports the indigenous organizations’ criticism that the draft Code accepts that indigenous peoples should accede to ownership of their land only in cases where there has been a prior administrative decision. The CGT, for its part, expresses its hope that the draft Civil Code reflects some degree of progress in dealing with the lands occupied by the indigenous communities. It hopes that the draft Code will secure the uniform application of the Convention throughout the national territory. The Committee invites the Government in its next report to include information on the outcome of the consultations held with the representative institutions on the measures proposed in the revised Civil and Commercial Code (Article 6).
Identification of the status of land and its regularization. Suspension of evictions. The Government stresses in its reports that only if a new law is adopted can the conditions be met for the effective constitutional recognition – in the sense of reparation – of community possession and ownership of land identified as being occupied by indigenous communities. The Committee recalls that the identification of the status of land and its regularization were carried out under Acts Nos 26160 of 2006 and 26554 of 2009 declaring the emergency regarding the possession and ownership of land. The Committee notes with interest that Act No. 26894, published on 21 October 2013, granted an extension, until 23 November 2017, of the suspension of evictions pending the completion of the identification of the status of land provided for by Act No. 26160. In the report received in November 2013, the Government points out that the judiciary is the body responsible for assessing whether the conditions that trigger an emergency, and the consequent suspension of evictions, have been met. If threats arise to indigenous territories, the Government declares its readiness to ensure an institutional presence and promote committees on dialogue with the provincial authorities and the sectors concerned. The Government emphasizes that it has been giving effect to Article 14(2) of the Convention by means of the land status identification process, which has been operating since 2003. The Committee refers to its direct request and hopes that the Government will include up-to-date information in its next report on the measures taken to overcome the difficulties encountered with regard to completing the process of recognition of indigenous community possession and ownership in the country (Article 14).
Río Negro. Consultation and participation. Traditional activities. In its previous comments, the Committee had referred to the identification and regularization of the status of land in the province of Río Negro. The Government had also indicated that indigenous stockbreeders should be able to obtain marks and signs certificates (titles of ownership of livestock) easily and to exercise their livestock-raising activities. The Government observed that it was difficult to establish ownership of marks and signs without first having established ownership of the lands, and this complicated the business of getting the animals to market. In its observation of 2011, the Committee noted the comments of the Education Workers’ Union of Río Negro (UNTER) of July 2008 referring to the granting by the provincial authorities of exploration permits in hydrocarbon bearing fields, authorizing the establishment of protected natural areas without holding consultations with the Mapuche peoples inhabiting the area and without recognizing the rights of the Quintupuray and Lof Mariano Epulef Mapuche communities over the lands they traditionally occupy. The Committee again refers to the conclusions and recommendations of the report adopted in November 2008 by the Governing Body (document GB.303/19/7) and requests the Government to include in its next report updated information on progress in regularizing indigenous community property in the Province of Río Negro and on how the consultation and participation procedures provided for in the Convention are being applied at the provincial level. It also requests the Government to indicate whether the Indigenous Community Development Council of the province of Río Negro has facilitated the granting of marks and signs certificates, as the raising of livestock is a traditional activity of the Mapuche people (Article 23).
Tucumán. Protection of fundamental rights. Chuschagasta community. The Committee takes note of the updated information sent to it by the Government in its report concerning the trial of three people who were arrested in October 2009 and charged with murdering an indigenous leader and wounding two members of the Chuschagasta community. However, the Criminal Chamber decided on 18 February 2012 to revoke the sentence handed down by the Court of First Instance on grounds of homicide and to free the detainees. The Government states that, under the programme to strengthen the community and ensure its access to justice, the INAI subsidized the cost of the judicial proceedings for the Chuschagasta community. The Committee takes note that the Government proposes to adopt a firm strategy vis-à-vis such judicial proceedings and, at the same time, to take a sufficiently public stance for the crimes committed not to go unpunished. The Committee invites the Government to report on the progress made to ensure that the persons responsible for the crimes committed against the Chuschagasta community are punished (Article 3).
Quilmes Indian community. Evictions. Application of the Convention by the Supreme Court of Justice of Tucumán. Responding to earlier comments by the Committee, the Government describes the situation of 40 families living in overcrowded conditions in Coalao del Valle (department of Tafi del Valle). In December 2008, basing its ruling on a provincial law that does not allow discussion of ownership or possession of plots of land, a provisional court ordered the eviction of the indigenous families. The indigenous community received legal aid from an organization of human rights lawyers. In addition, INAI states that it has been providing ongoing collaboration in the disputed area through one of its territorial officers. The court eviction order has not been carried out. The Committee takes note that a complaint lodged with the Supreme Court of Justice of Tucumán by the indigenous community is currently under examination. The Committee invites the Government to provide in its next report information on the ruling of the Supreme Court of Justice of Tucumán regarding the situation of the Quilmes Indian community. The Committee hopes that the report will contain information that will allow it to examine the progress made in identifying and regularizing the status of indigenous community lands in Tucumán (Part II of the Convention).
In a direct request, the Committee invites the Government to provide details of the identification of the status of land and its regularization and of specific situations resulting from the application of the Convention in the provinces of Formosa (Qom Navogoh La Primavera community), Mendoza (community of the Huarpe Milcallac peoples) and Neuquén (Paichil Antriao Mapuche community).
[The Government is asked to reply in detail to the present comments in 2015.]

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Communication from the Confederation of Workers of Argentina (CTA). Eviction of communities. Consultations required by the Convention. The Committee notes the reply sent in March 2012 by the Government to the observations from the Confederation of Workers of Argentina (CTA) received in August 2011. The CTA highlighted the violent evictions of indigenous communities from the territories that they traditionally occupy in the provinces of Formosa (Toba-Qom Navogoh, La Primavera community), Rio Negro (the Paichil Antriao Mapuche community), Tucumán (the Chuschagasta and India Quilmes communities), situations that were referred to in the observation made by the Committee of Experts in 2011. The Government’s reply does not contain any information relating to the abovementioned events, but the National Institute for Indigenous Affairs (INAI), in its report, recalls its functions as a decentralized body with indigenous participation which operates within the Ministry of Social Development. The INAI draws attention to the three fundamental laws for the effective recognition of the rights of indigenous peoples (Act No. 26160 of 2006 concerning the emergency relating to ownership of lands traditionally occupied by indigenous communities and its extension by means of Act No. 26554 of 2009; Act No. 26206 of 2006 concerning national education, and Act No. 26522 of 2009 concerning audiovisual communication services). The INAI indicates that by means of Decree No. 700 the Commission for Analysis of the Implementation of Indigenous Community Ownership was set up in May 2010. In October 2010, the Commission submitted a preliminary bill to the Ministry of Social Development. The Committee also notes the fact that the INAI, with the participation of indigenous organizations and the Council for Indigenous Participation (CPI), held a university event in November 2011 which focused, among other things, on the need to complete the territorial survey and the demarcation of indigenous community territories throughout the country, promote the dispatch of the draft legislation concerning indigenous community ownership and also promote the establishment of a commission for preparing draft legislation on consultation and participation to enable the application of Convention No. 169. In its new observations received in August 2012, with a contribution from the Observatory for the Human Rights of Indigenous Peoples (ODHPI), the CTA indicates that the legislative process is under way for a preliminary draft national Civil and Commercial Code, which includes provisions concerning indigenous community ownership. The CTA states that there is no connection between the provisions of the preliminary draft that is currently passing through the legislative process and those that were prepared by the commission established in May 2010. In the report received in November 2012, the Government indicates that the reform of the Civil and Commercial Code incorporates the right to community possession and ownership of lands traditionally occupied by indigenous communities, the right to consultation and participation, and respect for forms of internal organization in accordance with the world view of indigenous peoples. The Committee notes that a bicameral commission of the National Congress is holding public hearings to debate the reform in various provinces of the country and the INAI is ensuring effective indigenous participation in the hearings. The Committee repeats its request to the Government to provide detailed information in the report due in 2013 on the steps taken to investigate the allegations of violent evictions and deaths in the indigenous communities referred to in the observation made in 2011. The Committee also requests the Government to provide information enabling it to examine in detail how it has been ensured that indigenous peoples have been consulted whenever consideration has been given to legislative or administrative measures which may affect them directly (Article 6(1)(a) of the Convention). The Committee hopes that the Government will indicate the manner in which a new Civil and Commercial Code has ensured that full effect is given to the provisions of the Convention relating to lands traditionally occupied by indigenous peoples and to natural resources pertaining to their lands.
Communication from the International Organisation of Employers (IOE). The Committee notes that the IOE has submitted observations in August 2012 on the application in law and practice of Articles 6, 7, 15 and 16 of the Convention concerning the requirement of consultation. In this regard, the IOE raises the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus of indigenous and tribal peoples, and the importance for the Committee to be aware of the consequences of the issue in relation to legal security, financial costs and certainty of both public and private investment. The IOE refers to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also states that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to include in its next report any comments that it deems appropriate on the observations made by the IOE.
Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution). Consultations at national level in the CPI. Register of indigenous communities. Regularization of lands. As follow-up to the request made by the Governing Body in November 2008 further to a representation submitted in August 2006 by the Educational Workers’ Union of Río Negro (UNTER) (GB.303/19/7), the Committee requested information, in the observation made in 2011, on the progress of the issues that were pending at national level and in the Río Negro province. The Committee notes the partial reply provided by the Government, by means of the report received in November 2012, to some of the issues raised at national level. The INAI recalls that the CPI is a forum for participation and consultation which has adopted regulatory statutes governing its operation and which has expanded its membership to some 113 representatives. The National Programme for Identification of the Status of Indigenous Community Lands (Re.Te.C.I.) holds bimonthly meetings with the National Committee of the CPI, composed of 25 representatives at the regional and national levels. Furthermore, the Follow-Up Committee of the National Forum for Territorial Organizations of Original Peoples (ENOTPO) is working in conjunction with the Re.Te.C.I. National Programme, in which eight representatives participate at the regional and national levels. The ENOTPO is an umbrella organization for some 40 indigenous territorial organizations. Pursuant to Act No. 26160 and Re.Te.C.I., 950 communities have been identified for the purposes of recording their land status and 367 communities and over 3 million hectares have had their status recorded. A total of 328 indigenous communities have legal personality that has been registered in the National Register of Indigenous Communities (RENACI), 337 communities are registered with provincial organizations in the context of agreements concluded with the INAI, and some 600 communities are registered with other competent provincial organizations. The Government states that there have been no cases to date of indigenous communities for which registration of their legal personality in the national register has been refused. The Committee also notes the list of various bills relating to subjects covered by the Convention which are undergoing the legislative process but have not yet been approved. The Committee invites the Government to include with its next report a copy of the regulations of the CPI and a summary of the administrative and legislative measures which have been the subject of the consultations required by the Convention in the abovementioned institutional context.
Río Negro province. Consultation, participation and traditional activities of indigenous peoples. The Committee notes the information sent in the report received in November 2012 indicating that in the province of Río Negro some 320,000 hectares of land have been regularized in favour of indigenous communities. In the observation made in 2011, it was recalled that the Mapuche and Mapuche–Tehuelche peoples were organized through the Coordinating Committee of the Mapuche People’s Parliament, which proposed candidates for the positions of advisers and presidents of the Council for the Development of Indigenous Communities (CODECI). The Government also indicated that indigenous stockbreeders were able to have access easily to marks and signs certificates and carry on their activities under conditions of equality. With reference to marks and signs, the Government indicated that it was difficult to grant ownership of marks and signs where no title to the lands had been obtained, resulting in difficulties in the circulation of livestock for sale. The Committee refers once again to the conclusions and recommendations of the report adopted in November 2008 by the Governing Body (document GB.303/19/7), and requests the Government to include in its next report up-to-date information on progress made regarding the regularization of indigenous community property and on the manner in which the procedures for consultation and participation provided for in the Convention are being implemented at provincial level. The Government is also requested to indicate whether the regularization of lands has facilitated the grant of certificates of marks and/or signs (livestock ownership titles), since stockbreeding is a traditional activity of the Mapuche people (Article 23).
Coordinated and systematic policy. The Committee notes that, by Decree No. 791/2012 of May 2012, the INAI was again authorized to designate a delegate for each of the ethnic groups of the country in order to form the Coordination Council already provided for under section 10 of Act No. 23.302 of November 1985 concerning indigenous policy and support for aboriginal communities. Moreover, the Government emphasizes, in the report received in November 2012, that the inclusion of the right to consultation and participation in the draft revised Civil and Commercial Code would entail the need to adopt a special law regulating indigenous consultation and participation. The Committee requests the Government to supply information in its next report on any progress made regarding the regulation of the right to participation and consultation in accordance with the Convention. The Committee again requests the Government to attach copies of the records of the meetings of the Coordination Council. The Committee also requests the Government to indicate how indigenous participation councils take part in the INAI decision-making process. The Committee hopes that the Government will provide details of the distribution of responsibilities and the coordination mechanisms established between the Coordination Council and the Advisory Council (provided for in Act No. 23302 of 1985), on the one hand, and the CPI (provided for in Act No. 26160 of 2006), on the other (Articles 2 and 33 of the Convention).
Article 14. Lands. The Committee notes the detailed information sent by the Government regarding the land ownership regularization processes which have been undertaken mainly in Jujuy province (over 1.6 million hectares) and in the provinces of Río Negro (320,000 hectares), Chubut (104,893 hectares) and Chaco (320,000 hectares). The Committee invites the Government to include up-to-date information in its next report on the number of beneficiary communities and the surface area of lands regularized in the context of the National Programme for Identification of the Status of Indigenous Community Lands and the manner in which the participation of the communities concerned by the land status identification process has been ensured. The Government is also requested to include information on the land regularization processes which have been undertaken or are pending in other provinces concerned (Buenos Aires, Entre Ríos, Formosa, Neuquén, Salta, Tucumán and Tierra del Fuego, as mentioned by the Government in its report), and also on any difficulties encountered in completing the recognition of indigenous community possession and ownership in the country.
The Committee invites the Government, when preparing the report due in 2013, to consult the social partners and indigenous organizations with regard to the measures taken to give effect to the Convention. The Committee hopes that the Government will submit a report in 2013 which contains specific information on all the other subjects referred to in its observation and direct request of 2011 and on the results achieved by the measures taken to give effect to each of the provisions of the Convention.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 1 of the Convention. Self-identification. The Committee notes that, in the observations provided on 31 August 2011, the Confederation of Workers of Argentina (CTA) indicates that the population census carried out in 2010 did not include any type of question concerning indigenous identity. Noting that the Government only indicated that members of indigenous peoples participated in the 2010 census as agents carrying out the census, the Committee requests the Government to indicate whether the questionnaire used for the census contained questions allowing the self-identification of members of indigenous peoples. The Committee requests the Government to provide a copy of the questionnaire. The Committee also asks the Government to provide information on the operation of the recently established National Register of Organizations of Indigenous Peoples (RENOPI), to which it refers in its report, and on the relationship between the RENOPI and the National Register of Indigenous Communities, which already exists.
Plan of action. The Committee notes the Government’s indication that, in the context of the plan of action developed following the seminar/workshop held in May 2007, indigenous grants will continue to be provided and measures will be taken so that they can continue to be granted, together with the universal child allowance. Furthermore, the ceiling for the number of grants will be raised to 20,000 and there will be no ceiling to the number of university grants provided. The Government adds that, for the purposes of implementation and with a view to developing initiatives to strengthen indigenous university education, an agreement was concluded between the Ministry of Education and the National Institute for Indigenous Affairs (INAI). With regard to the right to communication, under the terms of the new Act on audiovisual services (Act No. 26522), which recognizes indigenous languages in section 9, the Government indicates that it will finance the establishment of ten FM radios and one AM radio. With reference to historical claims, pursuant to Presidential Decree No. 701/2010, the mortal remains of indigenous persons in museums and private collections will be handed over to indigenous peoples. The Government explains that the plan of action has become a new agenda for dialogue between indigenous peoples and the Government. The Committee requests the Government to continue providing information on the implementation of the plan of action and on the measures adopted to follow up the 2007 seminar/workshop, and particularly on any measures adopted in consultation with indigenous peoples in relation to education.
The Committee notes that the Government has not provided information on the other matters raised, which are reiterated below:
  • (i) The Committee requests the Government to indicate whether the council of the Quompi-Lqataxac Nam Qompi de Comunidades Tobas has been registered, and also requests it to continue providing information on any developments relating to the registration of indigenous communities.
  • (ii) The Committee requests the Government to provide information on the activities of the National Human Rights Secretariat for the dissemination of information on the rights established by the Convention among provincial governments and parliaments, and on any legislative measures adopted under the participatory powers established by article 75(17) in fine of the National Constitution in order to ensure that the provincial legislation is in conformity with the Convention.
  • (iii) The Committee requests the Government to provide information on the progress made in regularizing the lands traditionally occupied by the Huarpe people.
Developments in case law. The Committee notes the decisions of various courts relating to the rights set out in the Convention, which refer in particular to the exploitation of natural resources (Mellao Morales Mapuche Community v. Corporación Minera del Leuquén S.E. in an administrative procedure, and Leaño Julia Rebecca et al. v. the Provincial State in an application for amparo – judicial means for the protection of constitutional rights in Argentina). The Committee requests the Government to continue providing information on court decisions applying the provisions of the Convention and their effects in practice.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the observations of the General Confederation of Labour (CGT), of 29 October 2010, on pending issues, and particularly on the need to establish appropriate consultation machinery, and the observations of the Confederation of Workers of Argentina (CTA), of 31 August 2011, which refer to pending matters, and particularly the use of violence for the removal of indigenous communities from the lands which they traditionally occupy. The Committee requests the Government to provide its comments on these matters.
Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO). In previous comments, the Committee noted the report adopted in November 2008 by the Governing Body (GB.303/19/7) on the representation made under article 24 of the ILO Constitution by the Educational Workers’ Union of Río Negro (UNTER), in which the Governing Body examined matters relating to consultation at the national level, as well as the issues of consultation, participation and the performance of traditional activities by indigenous peoples in the province of Río Negro and requested the Government to:
  • (a) continue making efforts to strengthen the Council for Indigenous Participation (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) carry out consultations with regard to the Bills referred to in paragraphs 12 and 64 of the 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) ensure that, in implementing Act No. 26160, all communities and truly representative institutions of the indigenous peoples likely to be directly affected are consulted and able to participate;
  • (d) ensure that, in accordance with the principle of concurrent powers of national and provincial authorities, effective consultation and participation mechanisms are established in the Province of Río Negro involving all the truly representative organizations of the indigenous peoples, as set out in paragraphs 75, 76 and 80 of the report of the Governing Body, in particular in the process of implementing national Act No. 26160;
  • (e) in implementing Act No. 26160, to make substantial efforts, in consultation with and with the participation of the indigenous peoples of the Province of Río Negro 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(3) of the Convention; (2) the question of the levy for land use referred to in paragraph 92 of the report of the Governing Body; (3) any problems in obtaining legal personality; and (4) the issue of dispersed communities and their land rights; and
  • (f) make efforts to ensure that measures are adopted in the Province of Río Negro, including interim measures, with the participation of the indigenous peoples 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.
The Committee notes that, according to the CTA and the CGT, effect has not been given to the recommendations made by the tripartite committee.
The Committee notes that, with regard to the strengthening of consultation and participation machinery, the Government indicates that, with a view to strengthening the CPI and the participation of all indigenous communities and institutions considered representative by those communities, the communities included in the National Register of Indigenous Communities (RENACI) and in provincial registers were convened. According to the Government, communities which are not registered can also participate with the consent of the majority of the other communities. With a view to ensuring the transparency of the process, the National Institute for Indigenous Affairs (INAI) participates in community assemblies, and the processes of indigenous peoples for the election of their representatives are respected. Moreover, the representatives are provided with a sum of money so that they can travel in their communities and national meetings are organized in which the representatives of all indigenous peoples participate with a view to reaching agreements and setting priorities. Workshops and seminars have also been held.
With regard to the legislative bills that are under examination and consultation with indigenous peoples on that subject, the Committee notes that the Government referred, in the context of the representation, to a series of bills under examination, namely: the Bill amending the Mining Code with regard to the participation of indigenous communities; the Bill declaring the indigenous community property and emergency issue; the Bill establishing the intellectual property rights of indigenous peoples; the Bill to regulate relations between the authorities of the national and federal judicial systems and the authorities of indigenous peoples; the Bill establishing a mechanism for the consultation of indigenous peoples; the Bill establishing penal mediation as an alternative to resolving disputes arising from the penal system; the Indigenous Communities Property Regime: Emergency and Regulation, repealing sections 2, 4, 7, 11 and 12 of Act No. 23302; and the Indigenous Communities Regime. In this respect, the Committee notes that, according to the Government, the Bills have not been examined, with the exception of those resulting in the approval of Act No. 26160, of 2006, declaring indigenous community property an emergency issue and therefore suspending temporarily the implementation of judicial decisions, procedural or administrative acts regarding the eviction or removal from lands traditionally occupied by indigenous communities registered in RENACI. The Act is also mandating INAI to carry out the technical and legal identification of the status of the land occupied by indigenous communities as to its ownership or possession. Decree Regulations No. 1122/07 and INAI Resolution No. 587/07 on the National Programme for the Identification of the Lands of Indigenous Communities were also enacted. The Government indicated that the approval of these pieces of legislation followed processes in which the representatives of CPI participated. With regard to the implementation of Act No. 26160, the Committee notes the Government’s indication that indigenous communities participated in the drafting and implementation of the National Programme for the Identification of the Lands of Indigenous Communities referred to above.
With reference to the establishment of effective consultation and participation machinery in the province of Río Negro with all the truly representative organizations of indigenous peoples, the Government indicates that the Mapuche and Mapuche-Tehuelche peoples are organized through the Coordinating Committee of the Mapuche People’s Parliament, which assesses and proposes candidates for the positions of advisers and presidents of the Council for the Development of Indigenous Communities (CODECI). The CODECI is a co management body of the provincial State and the Mapuche people, which participates in the Río Negro Provincial Programme, particularly in the implementation of the Programme for the Identification of the Lands of Indigenous Communities (RETECI).
With regard to the identification of lands, in consultation with the indigenous peoples of the Province of Río Negro, and the difficulties involved in the certification of land, the Committee notes the indication by the Government that an agreement was concluded between the INAI and the CODECI and a budget allocated with a view to the implementation of the Provincial Land Identification Programme, with the identification of 126 communities. The Programme includes technical assistants of indigenous origin. The Government also refers to the various activities undertaken in the province with indigenous participation in 2009.
In relation to the measures adopted so that indigenous stockbreeders can have easy access to marks and signs certificates and exercise their activity under conditions of equality, the Committee notes the Government’s indication that the INAI signed an agreement with the Province of Río Negro (Agreement No. 156/01) under the terms of which indigenous communities are registered as legal entities with the Directorate of Legal Personality and the Council for the Development of Indigenous Communities in the province. With reference to marks and signs, the Government indicates that the absence of regularization of land tenure of certain members of indigenous communities makes it difficult to grant them ownership of marks and signs, resulting in difficulties in the circulation of livestock for sale.
Taking into account the information supplied, the Committee requests the Government to:
  • (i) continue taking the necessary measures to ensure that indigenous peoples are consulted in an appropriate manner whenever it is planned to adopt administrative or legislative measures that may affect them directly;
  • (ii) indicate whether the various Bills referred to above are still under examination or have been shelved and indicate any developments regarding those still under examination;
  • (iii) provide information on the impact in practice of the implementation of Act No. 26160 and the National Programme for the Identification of the Lands of Indigenous Communities, and particularly on the number of communities having benefited, and the land regularized;
  • (iv) continue providing information on the progress achieved in the process of land identification undertaken with the participation of the indigenous communities concerned and the difficulties encountered in that process, including the issues of levies for land use and dispersed communities and their land rights;
  • (v) indicate the number of indigenous communities registered, the number of pending registrations and any cases in which registration has been denied and the reasons for such denial; and
  • (vi) take the necessary steps for the adoption of measures, including transitional measures, in the Province of Río Negro, with the participation of the peoples concerned, so that indigenous stockbreeders can have access easily to marks and signs certificates and carry on their activities under conditions of equality, and to strengthen that activity in accordance with Article 23 of the Convention.
Eviction of communities. The Committee notes the observations of the CTA dated 31 August 2010 and 31 August 2011 and of the Association of Health Professionals of Salta (APSADES) dated 12 June 2009 concerning the eviction, sometimes with the use of violence, of indigenous communities, without taking into account Act No. 26160, which had suspended such evictions. The Committee notes that the CTA refers to evictions principally in Tucumán, Neuquén, Formosa and Chaco. In particular, it denounces the violent eviction of the Chuschagasta community in Tucumán on 12 October 2009, resulting in the death of a member of the council of elders and injuries to various other representatives, the eviction of the India Quilmes community, the eviction of the Paichil Antriao community (in respect of which the Inter-American Commission on Human Rights (IACHR) requested precautionary measures on 6 April 2011 (MC 269/08) and the violent eviction of the Toba-Qom de Navogoh La Primavera community in the Province of Formosa on 23 November 2010, during which two members of the community died. The Committee observes that the Government replied to these issues only in general terms in its report.
The Committee also notes that APSADES forwards a report issued by the National Aboriginal Pastoral Team (ENDEPA), which also refers to the eviction of communities from the lands they occupy and delays in certifying land tenure. ENDEPA also refers to a series of specific cases of violations of the rights of indigenous peoples, and particularly: the implementation of contaminating mining exploitation activities without consulting the indigenous peoples who are directly affected in the Province of Chaco; the assignment of ancestral lands as the property of a university in the Province of Misiones; mining exploitation in the Province of Jujuy and the Province of Chubut without prior consultation with the indigenous communities affected; and allegations of discrimination against members of indigenous communities. ENDEPA adds that, following the complaints made concerning all these allegations, the INAI initiated administrative procedure No. INAI-50395-2008. In this regard, the Committee notes that the Government confines itself in its reply to summarizing the allegations of ENDEPA, without giving a precise reply. Emphasizing the gravity of the allegations, the Committee requests the Government to:
  • (i) take the necessary measures to conduct investigations into the allegations of the violent eviction of the communities referred to and the death of members of the Chuschagasta indigenous community in Tucumán and the Toba-Qom de Navogh indigenous community in Formosa;
  • (ii) provide information on the progress made in the procedures relating to file No. INAI-50395-2008, referred to by ENDEPA, concerning the complaints related to the abovementioned acts and the eviction of the Paichil Antriao community; and
  • (iii) take measures, in consultation with the indigenous peoples affected, with a view to finding an appropriate solution to each of the disputes referred to, in accordance with Act No. 26160, which provides for the suspension of evictions.
Articles 2 and 33. Coordinated and systematic policy. In its previous comments, the Committee requested the Government to provide detailed information on the procedures for the election of indigenous representatives to the Coordination Council envisaged in Act No. 23302/85, and to indicate whether such procedures ensure that the indigenous peoples are able to elect their representatives without any interference. In this respect, the Committee notes the Government’s indication that INAI Resolution No. 41/08 determines the procedures for the designation of indigenous representatives to the Coordination Council through regional community assemblies in which the highest community authorities and the representatives of each people participate. These representatives are elected by each community in accordance with their own procedures. The INAI provides support for these procedures, and the representatives’ designations have to be ratified by means of a decree issued by the national executive power. With regard to the designation of members of the CPI, the Committee notes that, according to the CTA, they are elected by the provinces, instead of being elected by the communities, their functions are limited and they lack real participation in the decisions of the INAI. In this respect, the Committee notes the Government’s indication that the CPI is composed of 100 representatives of over 30 peoples. The Committee notes that, according to the Government, the composition of CPI is due to be renewed in 2011 with the election of two representatives for each community of the same people in each province, to serve a three-year mandate. The Committee requests the Government to continue providing information on the activities of the Coordination Council, and particularly on the election of the representatives of indigenous peoples and the intervals between the meetings of the Council and its agenda. The Committee asks the Government to indicate the limits to the exercise of its powers when issuing the Decree of ratification of the election of the members of CPI. The Committee requests the Government to attach copies of the reports of the meetings of the Council. The Committee also asks the Government to indicate how indigenous participation councils take part in the decision-making process of INAI. Furthermore, observing that the Government has not provided the requested information on the distribution of responsibilities and the coordination mechanisms established between the Coordination Council and the Advisory Council (envisaged in Act No. 23302/85), on the one hand, and the CPI (envisaged in Act No. 26160) on the other, the Committee reiterates its request to the Government in this regard.
Articles 6 and 7. Consultation and participation. The Committee notes that, with regard to the Plan of Action on Participation and Consultation drawn up in a seminar/workshop held in May 2007, the Government indicates that the Directorate for the Affirmation of Indigenous Rights has been established, and that the appointment to the post will be made upon the proposal of indigenous organizations (National Decree No. 702/201). The Government adds that progress is being made in regulating the right to participation and consultation, for which purpose the INAI will establish a legislative assessment and drafting commission together with indigenous organizations and the CPI. The Committee requests the Government to provide information on any progress made in regulating the right to participation and consultation, and requests the Government to take the necessary measures to ensure that such regulations are in conformity with the Convention.
Observations made by the Educational Workers’ Union of Río Negro (UNTER), dated 28 July 2008. The Committee notes that, in its observations, the UNTER refers to the following matters: the granting of hydrocarbon exploration and exploitation permits in the Province of Río Negro (the hydrocarbon-bearing fields of Neuqueu, Colorado del Ñirihuau and Cañadón Asfalto-Meseta de Somuncurá); the establishment of protected natural areas in the Province of Río Negro without having held consultations with the Mapuche peoples inhabiting the area; and the failure to recognize the rights of the Mapuche communities and eviction from the lands they traditionally occupy (the Quintupuray and Lof Mariano Epulef communities). The Committee regrets that the Government has not provided its comments on this subject, and requests it to do so without further delay.
Article 14. Lands. The Committee previously requested the Government to provide information on the progress achieved and the difficulties encountered in the process of regularization of the lands traditionally occupied by indigenous peoples, in accordance with Act No. 26160 declaring the ownership and possession of traditionally occupied lands an emergency issue. In this respect, the Committee notes the Government’s indication that: (1) the National Programme for the Identification of the Lands of Indigenous Communities (RETECI) has concluded seven specific agreements in various provinces, with a view to carrying out the technical and legal identification of the respective lands. In April 2010, the identification process was completed in the provinces of Córdoba, Entre Ríos, Tierra del Fuego, La Pampa and San Juan, and is awaiting implementation in the provinces of Mendoza, Neuquén, Misiones, San Luis, Formosa, Corrientes and La Rioja. The Government indicates that the implementation of the Programme has given rise to renewed disputes between the communities, on the one hand, and non-indigenous families, economic and local interests, on the other, which has resulted in reticence by provincial bodies in giving effect to it; (2) 13,460,000 hectares are to be identified, of which 4 million hectares have been registered or identified as indigenous lands prior to Act No. 26160, while 2,955,838 hectares have been identified as indigenous lands since the adoption of the Act; (3) Act No. 26554 extended both the time limits envisaged in Act No. 26160 for land identification and the period of suspension of evictions until November 2013, and increased the amount of the special fund to support the demarcation of lands by US$30 million; (4) the Programme for the Regularization and Adjudication of the Lands of the Aboriginal Population of Jujuy (PRATPAJ) has regularized approximately 1,312,645 hectares. Referring to the provincial report, the Government provides detailed information on the manner in which those lands were distributed in the communities in the departments of Cochinoca, Yavi, Susques, Tilcara, Humahuaca and Tumbaya, as well as information on pending procedures; and (5) Presidential Decree No. 700/2010 was issued ordering the establishment of a Legislative Analysis and Drafting Commission composed of representatives of the provincial governments, indigenous peoples and the CPI. The above Commission has prepared a preliminary draft Bill for the recognition of indigenous community possession and property. The Committee requests the Government to continue providing information on:
  • (i) the land regularization processes that have been carried out and are pending, the surface area covered and the beneficiary communities, as well as the difficulties encountered; and
  • (ii) the progress made in the preparation and adoption of legislation to recognize indigenous community possession and ownership.
The Committee is raising other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s reply to the communication of 12 June 2009 by the Association of Health Professionals of Salta (APSADES) and the communication of 31 August 2009 by the Confederation of Workers of Argentina (CTA). It also notes the communication of 27 August 2010 by the Association of Staff of Supervisory Bodies (APOC). The Committee also notes the comments of 31 August 2010 by the CTA. It also notes the comments of 29 October 2010 by the General Confederation of Labour (CGT). The Committee requests the Government to send its comments thereon and on the communication of 28 July 2008 by the Education Workers’ Union of Rio Negro (UNTER) alleging non-observance of Articles 6, 7, 15(2) and 17(2) of the Convention.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Legal personality. The Committee notes that, as of August 2008, 230 communities from around the country were registered in the National Register of Indigenous Communities. The Government reports that, under agreements signed with the provinces of Jujuy and Río Negro, 199 and 14 communities were registered respectively. Taking into account the national register and the provincial registers, approximately 550 communities are registered, although an exact figure cannot be given as there could be duplicate registrations or registrations under different forms of associations. Approximately 60 communities from around the country are in the process of being registered. The Committee also notes that, in the context of the agreement signed with the province of Salta on 9 August 2007 (National Institute of Indigenous Affairs (INAI) Decision No. 379/2007), two workshops were held in 2008 during which agreement was reached on a work programme for completing the analysis of the situation concerning the registration of the legal personality of indigenous communities in the province. Furthermore, agreement is in the process of being reached on the signing of agreements between the INAI-National Registry of Indigenous Communities and the provinces of Buenos Aires, Catamarca and Córdoba. In its previous comments, the Committee noted the decision regarding the case of Consejo Quompi-Lqataxac Nam Qompi de comunidades tobas – C/provincia del Chaco/acción de amparo, in which the Convention and the Provincial Constitution were relied on to order the province of Chaco to set up a register of indigenous communities and organizations with declaratory effect, and to register the Council concerned within five days. The Committee notes that, in connection with that decision, the Chaco Institute for Indigenous Peoples issued Decision No. 277/07, dated 28 August 2007, creating the Register of Communities and Organizations of the Toba, Mocoví and Wichí peoples in the province of Chaco and that registration in that register is declaratory and the communities and organizations are recognized as legal entities under public law. The Committee requests the Government to indicate whether the Consejo Quompi-Lqataxac Nam Qompi de comunidades tobas has already been registered and requests the Government to continue providing information on any developments relating to the registration of indigenous communities.

Application of the Convention and federalism. Further to its previous comments, the Committee notes that the National Human Rights Secretariat is responsible for disseminating information on the rights of indigenous peoples. The Committee requests the Government to provide information on the activities of the above Secretariat aimed at disseminating information on the rights established by the Convention among provincial governments and parliaments. Please also provide information on any legislative measures adopted under the participatory powers established by article 75(17) of the national Constitution in order to ensure that the provincial legislation is in conformity with the Convention.

Lands. Mendoza Huarpe community. Further to its previous comments, the Committee notes that the lands of the Huarpe people will be included in the Land Survey Programme for the purposes of regularizing their rights over traditionally occupied lands. The Committee requests the Government to provide information on the progress made in regularizing the lands traditionally occupied by the Huarpe people.

Education. The Committee notes that the Government provides information on the activities relating to education carried out under the Ministry of Education, namely: (i) grants for indigenous pupils at secondary school level; (ii) a support programme for indigenous intercultural education which includes an intercultural tutorial project; (iii) support for indigenous students at the tertiary and university levels; and (iv) documentation, recovery and strengthening of ancestral knowledge in indigenous communities and support for the institutional educational projects of national educational establishments relating to interculturalism. The Committee requests the Government to continue providing information on this matter and hopes that it will take the necessary measures together with the relevant bodies, such as those representing the Indigenous Participation Council (CPI) at the provincial level or the provincial human rights secretariats, so that it is in a position to provide information on the activities carried out in this area by the provincial ministries of education in provinces with an indigenous presence.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes a communication from the Association of Health Professionals of Salta (APSADES), of 12 June 2009, forwarded to the Government on 2 October 2009. It also notes a communication from the Confederation of Argentinean Workers (CTA), of 31 August 2009, forwarded to the Government on 18 September 2009. The Committee will examine these communications at its next session together with any observations of the Government in this regard. The Committee requests the Government to respond to the communication of APSADES and CTA.

Follow-up to the representation submitted under article 24 of the ILO Constitution (report of the Governing Body (GB.303/19/7) 12 November 2008.) The Committee recalls that in November 2008, the Governing Body adopted a report on the representation made under article 24 of the ILO Constitution by the Educational Workers’ Union of Río Negro (UNTER), in which the Governing Body examined issues of consultation at national level as well as issues of consultation, participation and performance of traditional activities of indigenous peoples in the province of Río Negro. The Committee notes that, in its report, the Government refers to the Provincial Survey Programme on Indigenous Communities for the Province of Río Negro, which provides for the survey of 124 communities to be executed over the next two years. However, the Committee notes with regret that no information is provided in reply to the recommendations formulated in paragraph 100 of the Governing Body’s report. The Committee therefore asks the Government to provide information, in its next report, with respect to the following recommendations formulated by the Governing Body:

(a)   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)   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)   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)   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)   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)    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.

Communication from the UNTER of July 2008. The Committee recalls that in its previous observation it referred to a communication from UNTER, received on 28 July 2008, in which various issues related to the alleged violation of Articles 6, 7, 15(2) and 17(2), of the Convention are raised. The Committee asked the Government to provide information on the points raised in UNTER’s communication, so that it could fully examine these matters in 2009. The Committee notes with regret that such information was not received. The Committee urges the Government to provide complete information in its next report on the issues raised in UNTER’s communication.

Follow-up to the seminar/workshop. The Committee notes that, according to the Government, as a result of the seminar/workshop which took place in May 2007, involving representatives of indigenous communities, social partners, the National Institute of Indigenous Affairs (INAI), the Ministry of Labour and the ILO, among others, proposals and an action plan were drawn up for the purpose of applying the Convention relating to the following points: lands, work, health and social security, vocational training, education and communication, and participation and consultation. The Committee requests the Government to provide information on the follow-up to the proposals and action plan, and the results achieved, particularly with regard to participation and consultation.

Coordinated and systematic policy

Coordination Council provided for in Act No. 23302. Further to its previous comments, the Committee notes with interest that pursuant to INAI Decision No. 042 of 28 February 2008, the Coordination Council provided for in section 5 of Act No. 23302/85 has been created. The Committee notes that pursuant to this Decision, the persons mentioned in the annex are included, on a provisional basis, as the representatives of indigenous communities and shall remain in their posts until replaced by other representatives elected in accordance with the mechanisms established by INAI Decision No. 041/2008. The Committee also notes the establishment of the Advisory Council which has the functions set out in section 15 of Regulatory Decree No. 155/89. While it considers that the establishment of the Coordination Council and the Advisory Council constitutes progress, the Committee requests detailed information on the procedures for the election of indigenous representatives, in particular whether such procedures ensure that the indigenous peoples are able to elect their representatives without any interference. The Committee also requests copies of the decisions mentioned.

Coordination of the various bodies representing indigenous peoples. The Committee notes that the Indigenous Participation Council (CPI) has the functions set out in Act No. 26160, Regulatory Decree No. 1122/07 and Decision No. 587/07 which creates the land survey programme. According to the Government, the CPI has been given considerable recognition by the institutions of the national Government and those of the provincial governments and its minutes are made public to ensure that the communities are aware of the issues dealt with by the CPI. The Committee requests the Government to provide information on the distribution of competencies and the coordination mechanisms established between the Coordination Council, the Advisory Council and the CPI.

Lands. Emergency Act No. 26160 on the ownership and possession of traditionally occupied lands. The Committee notes that a central coordination team has been set up in this regard. The Committee notes the detailed information provided by the Government concerning the national programme entitled “Indigenous Communities Land Survey” (Re.Te.Ci.), created under Decision No. 587 of 27 October 2007. Furthermore, the Government indicates that, at the decentralized level, a technical operation team will be set up in each province, which will work in coordination with the CPI and with a member of the provincial executive branch appointed by the Governor. The Committee notes that a “National Coordination Network for the Survey of Lands of Indigenous Communities” has been established and the following instruments have been created to implement the programme: (a) the “jaguar” system, which is a geographical information system; (b) a social community questionnaire, which is a tool for gathering socio-demographic data; (c) a survey of natural and cultural resources; and (d) an administrative procedures and operations manual. As of September 2008, projects were being developed relating to the regularization of lands in Buenos Aires (involving 40 communities), Chaco (involving 40 communities), Río Negro (involving 87 communities) and Salta (involving 330 communities). The Committee notes that the state of emergency declared with regard to the possession and ownership of traditionally occupied lands will last for four years from 23 November 2006, the date on which Act No. 26160 entered into force, and that the suspension of evictions will therefore be lifted on 23 November 2010. The Committee requests the Government to continue providing information on the progress made and difficulties encountered with regard to the regularization of lands traditionally occupied by indigenous peoples, including information on the following:

(i)    lands claimed by indigenous peoples, including quantity and percentages by province;

(ii)   lands regularized in relation to these percentages; and

(iii) lands to be regularized.

Please also indicate the measures envisaged to guarantee the rights laid down in Article 14 of the Convention if the regularization process has not been completed within the period mentioned.

Advances in case law. The Committee notes with interest the detailed information provided by the Government on new decisions relating to the rights established in the Convention. These decisions appear to be in line with the Convention, in terms of both lands and participation. With regard to lands, the Committee notes, for example, the decision of the Magistrate’s Court of the Fourth District of the Province of Neuquén in the case of Antiman, Víctor Antonio y Linares, José Cristóbal Linares s/usurpación, of 30 October 2007, in which the court recognized the new era with regard to rights over indigenous lands, ruling that it was “an era of recognition, recovery and reassertion of rights enshrined in the Constitution, as a result of which a decision criminalizing the conduct of the Mapuche people on 31 January 2005 would mean going back in time and failing to recognize the current legal and constitutional framework”. With regard to participation and natural resources, the Committee notes that the Supreme Court of Justice, in a decision of 26 March 2009 (S.1144.XLIV, Salas, Dino y otros c/Salta, provincial y Estado Nacional), confirmed the suspension of authorizations for felling and clearing until the completion of an environmental study and stipulated that the study had to be carried out “with the broad participation of the communities living in the affected area”. The Committee requests the Government to continue providing information on this matter. Furthermore, referring to a 2004 ruling which it noted in its previous comments, declaring that the Forestry Act of the Province of Chaco was unconstitutional because the indigenous communities had not been consulted, the Committee requests the Government to report on the measures taken as a result of the ruling.

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

[The Committee is asked to reply in detail to the present comments in 2010.]

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report was received on 30 September 2008, therefore the Committee will examine it at its next session. The Committee notes a communication from the Educational Workers’ Union of Río Negro (UNTER), received on 28 July 2008 and forwarded to the Government of Argentina on 25 August 2008. The Committee notes that the Government has not yet provided any reply to this communication. The Committee will examine the communication in more detail next year together with the Government’s reply. The Committee notes that the communication refers to the following issues.

Legislation. According to the communication, as from the constitutional reform of 1994 and the adoption in January 2007 of National Act No. 26,197 on the “provincialization” of hydrocarbons, it is the provinces that issue permits for prospecting and concessions for the exploitation and transport of hydrocarbons and oversee compliance. The above Act was not submitted to consultation and contains no provisions on the right of consultation and participation laid down in the Convention. Furthermore, Provincial Act No. 3,266 of 1999, regulating the procedure for evaluating environmental impact, is inconsistent with the right of consultation and participation laid down in Articles 6, 7, 15(2) and 17(2) of the Convention. The same criticism is directed to Provincial Act No. 2,669 on Protected Natural Areas (ANPs), as amended by Act No. 3,193.

Bidding and consultation procedures. The communication indicates that the Province of Río Negro has jurisdiction over four geological basins (Neuquina, Colorado, Niriñau and Cañadon Asfalto Meseta de Somuncurá). Bidding processes for prospecting are well under way, and the Neuquina basin has been under intense exploitation for decades. The communication lists the communities living on the lands under exploitation or for which bidding is in progress. It also indicates that further to the Provincial Hydrocarbons Prospection Plan 2006–07, 14 new areas have been pre-awarded in three geological basins without the consultation and participation required by Articles 6, 7 and 15(2) of the Convention.

Protected Natural Areas. According to the communication, to designate an area as an ANP does not imply protection of the lands and the natural and cultural resources of the indigenous peoples, and the Auca Mahuida ANP in Neuquén has been devastated by the work done on oil prospecting and exploitation. The communication states that the ANPs were created on ancestral lands of the Mapuches (Wall-Mapu) and lists them, citing Meseta de Somuncurá, Río Azul-lago Escondido and the Guaitecas cypress forest. It asserts that the right of participation and consultation laid down in the Convention was not observed when the ANPs were created and their management plans drawn up. Although the management plans are required by law to set forth the human necessities to be satisfied, there are no specific bodies or mechanisms for implementing the right of participation and consultation of the indigenous peoples living on lands designated as ANPs.

Representation GB.303/19/7. The Committee notes that in November 2008, the Governing Body adopted the report on the representation made under article 24 of the ILO Constitution by the UNTER, alleging the non-observance of certain provisions of the Convention. The report examines the issues of consultation at national level as well as issues of consultation, participation and performance of traditional activities of indigenous peoples in the province of Río Negro. The Committee notes that it has been requested to follow up on the implementation of the recommendations of the Governing Body set out in paragraph 100 of the abovementioned report, in which the Governing Body requested the Government to:

(a)   continue making efforts to strengthen the Council for Indigenous Participation (CIP) 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)   carry out consultations with regard to the bills referred to in paragraphs 12 and 64 of the Governing Body’s 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)   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)   ensure that, in accordance with the principle of concurrent powers of national and provincial authorities, effective consultation and participation mechanisms are established in the Río Negro Province involving all the truly representative organizations of the indigenous peoples, as set out in paragraphs 75, 76 and 80 of the Governing Body’s report, in particular in the process of implementing national Act No. 26,160;

(e)   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(3) of the Convention; (2) the question of the levy for land use referred to in paragraph 92 of the Governing Body’s report; (3) any problems in obtaining legal personality; and (4) the issue of dispersed communities and their land rights; and

(f)    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.

The Committee requests the Government to provide any additional information regarding the issues raised in the representation and those raised in UNTER’s communication, in particular regarding consultation and participation, so that the Committee may fully examine these matters in 2009.

[The Government is asked to reply in detail to the present comments in 2009.]

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

1. The Committee notes with interest the Supplementary Survey of Indigenous Peoples conducted by the National Institute for Statistics and Censuses (INDEC) which contains provisional results for some of the regions surveyed, regarding persons recognized as members or first-generation descendants of certain indigenous peoples. The Committee would be grateful if the Government would send the final results of the census as soon as is feasible.

2. The Committee notes that in April 2006, Decree No. 410/06 was signed and that it establishes the organization, hierarchy and dependency of the Secretariat for Social Policy and Human Development of the Ministry of Social Development. It also establishes that the National Indigenous Institute (INAI) comprises two directorates: the Directorate of Lands and the National Register of Indigenous Communities, and the Directorate for the Development of Indigenous Communities. The Committee further notes the increase in the budget assigned to the INAI, which reflects the increasing focus on indigenous matters in public policy.

3. Legal personality. The Committee notes that as well as registration in the INAI register, agreements have been signed with Jujuy, Río Negro, Misiones and Chubut, and another one is to be signed with Salta, and that in the other provinces the communities are applying for legal personality as civil associations. The Committee requests the Government to take steps to ensure that the communities are recognized as indigenous communities since a civil association seems to imply the formation of something new, which is not fully consistent with the Convention’s principle of recognition of a pre-existing reality, and to keep the Committee informed in this regard. The Committee also notes with interest the decision regarding the case of Consejo Quompi-Lqataxac Nam Qompi de comunidades tobas – C/Provincia del Chaco /Acción de amparo, in which the Convention and the Provincial Constitution were relied on to order the Province of Chaco to set up a register of indigenous communities and organizations with declaratory effect, and to register the Council concerned within five days “because the legal personality of indigenous groups is a pre-existing fact of reality and requires unconditional and unqualified recognition by the State; what already exists is thus declared, namely the pre-existence of the personality of indigenous communities and organizations”. The Committee requests the Government to provide information on the action taken on the above decision and on the measures adopted to harmonize the various provinces’ treatment of the recognition of indigenous communities, and ensure that the effect of registration is declaratory rather than executory.

4. Customary law. The Committee notes that in the case of Puel, Raúl s/daño (expediente No. 228/98), the High Court of Justice of the province of Neuquén overturned the decision of the lower court and acquitted a member of the Mapuche community on grounds of cultural particularities. The Committee notes that codes of procedure are the responsibility of the provinces and that their amendment shall be the result of a legislative and cultural process to adjust the legislation to international standards. The Committee asks the Government to continue to provide information on any court decisions and on developments in procedural law that concern the principles of the Convention in relation to indigenous customary law.

5. Lands. The Committee notes a number of programmes for the regularization of lands in various provinces, such as Chubut, and the achievements and the difficulties encountered. The Committee notes with regret that Act No. 6920 of Mendoza province has not been applied to the Huarpe Milacayac community because it was found to be unconstitutional. The Committee hopes that the INAI will do its utmost to demarcate and regularize lands traditionally occupied by the abovementioned people and that the Government will keep the Committee informed on this matter and on the demarcation and regularization of lands in the provinces, which will in all likelihood speed up once the new law suspending evictions has been passed.

6. Health. The Committee notes the various health programmes to improve the social and health status of original indigenous communities and their access to health. Please continue to provide information, particularly on any instances of Article 25(2) of the Convention (cooperation with peoples concerned) being applied to community health services.

7. Education. The Committee notes the information on the National Programme for Bilingual Intercultural Education established by Decision No. 549 of 3 June 2004, as well as the participation strategies and the institutionalization of the bilingual intercultural education proposal drawn up in the province of Chaco by the Centre for Information and Training of Indigenous Teachers (CIFMA). Please continue to provide information on the training of bilingual teachers in the various provinces with indigenous communities and, in the case the teachers who do not belong to the indigenous communities, provide information on the training received by them on the respective indigenous language and culture.

8. Articles 3 and 31. The Committee takes note of Presidential Decree No. 1086/05 “Towards a national plan against discrimination”, containing specific proposals for indigenous peoples. The Committee would be grateful if the Government would report on progress in the adoption and the application of the plan as they relate to the Convention.

9. Advances in case law. The Committee notes the information sent by the Government concerning a number of decisions by provincial courts that have recognized the rights of indigenous peoples and communities and which indicate the manner in which the courts apply and develop the provisions of the Convention. On the matter of lands, the Government refers to the case of Sede, Alfredo c/Vila, Herminia y otros s/desalojo (expediente núm. 14012-238.99), heard by the Third Judicial Constituency of Río Negro on 12 August 2004, which ruled that “indigenous ownership and property are new and specific concepts that affect the very concept of ownership and related rights. They have the rank of constitutional and supreme law and are differentiated from and independent of lower civil laws of lower rank; their inclusion in the Civil Code is therefore unnecessary and inappropriate because this would imply a lowering of rank not sought by the authors of the Constitution”. With regard to natural resources and consultation, the Committee notes the decision of 2 May 2006 in the context of amparo: Andrada de Quispe Rosalía Ladiez y otros c/Estado Provincial (expediente núm. 8-105.437/03), ordering “compliance with Article 15(2) of Convention No. 169 of the ILO which is part of our existing legislation, requiring participation by indigenous communities in all administrative acts regarding formalities for lands which may in some way affect their rights, and particularly any proceedings before the Mines Court”. It also notes with interest that in a case brought under the Constitution against the Province of Chaco the court ruled in a decision of 17 December 2004 that the law to reform the Forestry Act was unconstitutional because the government of Chaco had not consulted the indigenous Wichis communities about the law or involved them in its formulation. The Committee asks the Government to provide information on the outcome of these cases and on any other cases relevant to the application of the Convention.

10. The Committee notes that points 6 of its observation and 16, 31, 34, 35 and 36 of its direct request concerning the presentation by the Association of Provincial Educators, have been referred for advice to the various administrative departments involved in giving effect to the matters raised. The Committee hopes that the Government will provide this information in its next report.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

1. 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.

2. The Committee notes with interest that at the Government’s request, a workshop/seminar on the Convention is being organized with technical assistance from the Office for April 2007 and is to be attended by representatives from the bodies that apply the Convention, from the provinces and from indigenous peoples.

3. Article 1, paragraph 2. Self-identification and legal personality. The Committee notes that to obtain recognition, indigenous communities may apply to the National Registrar of Indigenous Communities (ReNaCi) for legal personality, and that in some provinces it can be obtained from provincial registrars, and that the National Indigenous Institute (INAI) helps the communities to prepare the requisite documents. It further notes that there has been progress in the recognition of certain communities, including eight communities in the Province of Río Negro. The Committee hopes that the Government will pursue its efforts to ensure that in the near future, a high proportion of communities obtain recognition and hence full enjoyment of all the rights deriving from it. The Committee notes that the ReNaCi has registered all indigenous communities, whether or not they have legal personality, and requests the Government to send information on the percentage of communities that already have legal personality and the percentage that gain recognition by the time of the Government’s next report, so that the Committee may ascertain the progress made in this matter.

Consultation and coordinated and systematic action

4. 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. The Committee hopes that the Government will pursue its efforts to put the Coordinating Council into operation at an early date and that it will report on progress made regarding this matter. It also asks the Government to specify whether the minutes of CPI meetings are public, enabling indigenous communities to keep abreast of issues dealt with in the CPI thus ensuring transparency in consultation and participation procedures and in their results, which will also influence the extent to which they are observed. The Committee would also be grateful if the Government would state whether only communities with legal personality participate or whether other communities may also take part whether or not they have legal personality. While noting with interest that the Government is laying institutional bases for coordinated and systematic application of the Convention, the Committee hopes that the Government will pursue its efforts to strengthen these bodies in order to broaden the institutional basis for further participation of indigenous peoples in public policies affecting them, in accordance with Articles 2 and 33 of the Convention. Please report on progress made in this regard.

5. Article 15, paragraph 2. Natural resources. The Committee notes that a decision of 2006 by the Administrative Tribunal of the Province of Jujuy ordered the provincial government to comply with Article 15(2) of the Convention by allowing the participation of indigenous communities in all administrative proceedings concerning lands which might affect their rights in some way, particularly proceedings before the Administrative Court for Mines. It also notes that a decision of 2004 in the Province of Chaco ruled that the Forestry Act was unconstitutional because the indigenous peoples were not consulted about it. While noting with interest that the courts are applying the provisions of the Convention, which in Argentina take precedence over other laws, the Committee requests the Government to pursue its efforts to incorporate this Article on consultation and natural resources in the legislation in such a way as to ensure uniform application in the various provinces. The Committee hopes that the Government will keep it informed of progress in this respect.

6. Application of the Convention and federalism. The Committee also notes that the Government refers to difficulties in applying some key provisions of the Convention, such as those pertaining to land and natural resources, because of the deepening of federalism that occurred following the constitutional reform of 1994 which placed responsibility for these matters in the hands of the provinces. It notes the priority given to the need to establish federal competence for matters involving indigenous communities and peoples. Furthermore, according to the report, article 75(17) in fine of the Constitution of the Argentine Republic provides for involvement of the provinces in the issuing of legislation, which means that the provinces can take part in developing the rights of indigenous peoples and communities in law, provided they recognize the minimum fundamental rights laid down in the national Constitution, it being understood that in Argentine law international treaties take precedence over the ordinary law. The Committee hopes that the national Government will take the necessary steps to disseminate the rights laid down in the Convention among provincial governments and parliaments, and that it will make use of the abovementioned participation to ensure that the provincial parliaments develop legislation that meets the requirements of the Convention. It also asks the Government to provide information on progress made in this regard.

7. Lands – evictions. The Committee notes with interest the promulgation of Act No. 26160 of 23 November 2006 suspending for four years the execution of any court or administrative decisions or proceedings for the eviction of indigenous communities from lands they traditionally occupy. It also notes with interest that in the first three years following the entry into force of the new law, the INAI is to carry out a survey of the technical, legal and registration aspects of the ownership status of these lands and a fund of 30 million pesos is to be set up for the survey and for the regularization programmes, for which the INAI will be responsible. The Committee invites the Government to provide information on the practical application of the Act and on the status of the survey and the regularization process. Noting that the new law is to apply to original indigenous communities “whose legal personality has been registered in the ReNaCi or relevant provincial registry, or pre-existing communities”, it asks the Government to take all necessary steps to speed up recognition of the legal personality of communities that have not yet obtained it and that meet the requirements of Article 1 of the Convention, to specify the meaning of the term “pre-existing communities”, and to keep the Committee informed in this regard.

8. The Committee notes that at its 297th Session in November 2006, the Governing Body declared receivable a representation by the Union of Education Workers of Río Negro (UNTER) alleging non-compliance by the Argentine Government with some provisions of the Convention.

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

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

1. The Committee notes the information supplied in the Government’s report. It also refers the Government to its observation on this Convention.

2. Article 1 of the Convention. Scope. The Committee notes that, according to the Government, the National Population and Housing Census of 2001 included an indigenous self-identification variable which will yield more accurate information as to number of indigenous persons in the country. The Committee requests the Government to provide the results of the census with its next report, together with information on any progress made in the preparation of a specific survey on indigenous peoples. It notes that the bill, to which it refers in its observation, requires an indigenous census to be carried out within two years, and requests the Government to keep it informed in this regard.

3. The Committee notes the Government’s statement that it finds that the observations submitted by the Congress of Argentine Workers (CTA) on 30 September 2002 do not meet the requirements for treatment as a representation under article 24 of the ILO Constitution. The Committee points out that those observations were submitted under articles 22 and 23 of the Constitution, and requests the Government to send any comments it deems appropriate on the matters raised by the CTA.

4. Indigenous identity. In its previous comments the Committee noted the CTA’s assertion that the peoples concerned are unable to defend their rights in the courts or before the public administration unless they are able to show that they have legal personality. The CTA further alleged that only 15 per cent of the 850 indigenous communities are recognized by the National Institute of Indigenous Affairs (INAI) and that no consultations were held with the communities themselves on the criteria for such recognition. Furthermore, legal personality granted by a province is not recognized at the national level unless there is a special agreement, and only four of the 20 provinces that have indigenous peoples have concluded such agreements. The Committee likewise noted that pursuant to the constitutional reform of 1994, a resolution was passed (No. 4811/96) establishing requirements for the registration of indigenous communities, the requirements have been simplified, and account is taken of self-identification as a fundamental right. The Committee takes notes of the information supplied by the Government in its report to the effect that in registering at national level the legal personality of indigenous communities, the latter’s customs and forms of organization are respected and that in the provinces agreements to this effect are concluded. The Committee requests the Government to provide information on the application of resolution No. 4811/96 in the various provinces, particularly in Neuquén and the provinces which have no agreement with the nation. Please also indicate how central authority and provincial authority in this matter are coordinated. Please provide information on the manner in which it is ensured that indigenous communities participate in, or are consulted on, the formulation of procedures for recognition of legal personality, at both national and provincial levels.

5. The Committee notes with interest the information supplied by the Government that in the province of Río Negro an agreement has been signed with the Mapuche community for recognition of the legal personality of the various communities. The Committee requests the Government to provide information in its next report on the number of indigenous communities that have acquired legal personality since the signing of the abovementioned agreement.

6. Article 2. Government measures. The Committee notes that the Constitution of the province of Jujuy requires the establishment of standards that will lead to the integration of indigenous peoples. The Committee reminds the Government that, without prejudice to the obligation to afford to members of indigenous communities the same opportunities as to the non-indigenous population, the objective of the Convention is to maintain the integrity of indigenous communities by establishing their right to set their own priorities.

7. Article 3. Human rights and fundamental freedoms. The Committee requests the Government to provide information on the status of the human rights and fundamental freedoms of the members of the Pilagá and Wichí communities in Lugones, El Quebracho and Las Lomitas in the province of Formosa, and on any complaints of breaches of their human rights and fundamental freedoms, together with details of any measures adopted or envisaged to ensure proper means of redress.

8. Article 4. Special measures of protection. The Committee notes with concern the information in a communication from the ADEP reporting suicides and alcohol problems among members of indigenous communities in the province of Jujuy caused by frustration at the lack of work and projects for young people. The Committee notes in this connection that in its report the Government supplies information on activities carried out under the "Indigenous Culture and Knowledge" programme for the prevention of alcoholism and other forms of addiction and the programme to prevent drug addiction and combat drug trafficking implemented by the INAI and the Programme Secretariat. The Committee would be grateful if the Government would provide information in its next report on progress made under these programmes and on the effective participation by representatives of the indigenous communities in the preparation, implementation and evaluation of the programmes.

9. The Committee requests the Government to provide information on the activities of the "National Programme to Support Humanitarian Action for Indigenous Peoples" (ANAHI).

10. Article 6. Consultation and participation. The Committee notes the content of the Alternative Report of the National Team for Pastoral Social Work and the Ecumenical Movement for Human Rights, which indicates that at the time of publication - July 2003 - there are no representatives of indigenous peoples in the INAI. The Committee requests the Government to provide information in its next report on the current structure of the INAI authorities, and particularly on the participation of representatives of indigenous peoples and the manner in which such representatives are elected. Please also provide information on the amounts assigned to the INAI in the budgets of the last few financial years.

11. The Committee requests the Government to provide information on activities carried out to apply the provisions of the Agreement of the Neuquén Institute for Indigenous Affairs; of the Chaco Institute for Indigenous Peoples; the Misiones Provincial Directorate for Guaraní Affairs; the Chubut Institute for Indigenous Communities; the Santa Fe Provincial Institute for Indigenous Peoples; the Salta Provincial Institute for Indigenous Peoples; the Formosa Institute for Indigenous Communities; and the Río Negro Council for the Development of Indigenous Communities.

12. The Committee requests the Government to provide details of the manner in which the indigenous communities are consulted and participate in actions and policies implemented in the province of Río Negro.

13. Article 7. Development policies. The Committee asks the Government to provide information on the manner in which indigenous communities are enabled to decide on their own priorities for development, as required by this Article. The Committee trusts that in its next report the Government will be able to give information on specific cases, indicating in particular the activities conducted under the "Ramón Lista Comprehensive Development Project"; the "Care for Indigenous Peoples Component" (CAPI) of the Programme of Care for Vulnerable Peoples; and the "Project for the Development of Indigenous Communities and the Protection of Biodiversity". The Government is also asked to provide information on the manner in which the indigenous communities concerned have participated in the formulation, implementation and evaluation of the activities conducted under the abovementioned projects, including activities to preserve and protect the environment.

14. The Committee again requests the Government to supply information on any progress made in the passage of the bill submitted to the Senate for the creation of the Programme of Basic Social Infrastructure for Indigenous Communities, indicating the manner in which the indigenous peoples were consulted in its preparation. The Committee would be grateful if the Government would provide a copy of the bill.

15. Articles 8, 9 and 10. Customs and customary law. The Committee notes the content of the Alternative Report of the National Team for Social Pastoral Work and the Ecumenical Movement for Human Rights, which states that the penal legislation does not deal with the indigenous peoples’ rights laid down in the abovementioned Articles. The Committee requests the Government to provide information on the application of these Articles of the Convention in law and in practice, including on the punishment of offences committed within the indigenous communities themselves.

16. Article 12. Access to legal proceedings. The Committee notes the information provided by the Association of Provincial Educators (ADEP) that in the provinces of Jujuy and Chaco, the lack of any courts near to or within reach of the main settlements of indigenous communities makes it difficult for these indigenous people to take legal action to defend their rights under the Convention. The Committee trusts that the Government will be in a position to provide information in its next report on the adoption of measures to give effect to this Article.

17. Article 14. Ownership and possession of lands. In its previous comments the Committee referred to the CTA’s allegation that the forms of ownership provided for in the Civil Code, which is of Roman law origin, are inadequate for the recognition of the possession and ownership of ancestral lands and that their application results in indigenous communities losing most of the claims that they make to land ownership. The Committee further notes that, according to the Alternative Report of the National Team for Social Pastoral Work and the Ecumenical Movement for Human Rights, apart from a few exceptions there are no procedures in operation at either national or provincial level to recognize lands occupied or used by indigenous communities, and that where such procedures do exist, the State has not given the communities political and strategic support.

18. The CTA referred to problems in the province of Río Negro, where there are Mapuche indigenous, and alleged that the provincial government was promoting a review of the ownership of public lands, 75 per cent of which are indigenous, with a view to using them as surety in applying to international financial institutions for new loans. It further stated that the Indigenous Adviser (CAI) of Río Negro was opposed to the policy of regularization of land ownership as proposed by the Río Negro government, that there are cases in the province of irregular cartographic entries, unlawful granting of ownership rights, unlawful purchase of possession rights, unlawful transfers of property and possession of rights acquired illegally, and pressure to sell land at very low prices. In the absence of any comments by the Government on this matter, the Committee reiterates its request for information on the policy of regularizing land title in this province, with an indication of the situation in law and practice.

19. The Committee requests the Government to provide information on the manner in which effect is given to section 1 of Act No. 2727 of the province of Misiones, which requires implementation of plans and actions allowing access to land ownership and the promotion of productive activities by the Guaraní communities in this province.

20. The Committee also notes that, according to the Alternative Report of the National Team for Social Pastoral Work and the Ecumenical Movement for Human Rights, in the province of Chaco, 50 per cent of the indigenous communities have either not acquired or not fully acquired title to ownership of the lands they inhabit or use and that those most affected are the Mocoví, followed by the Tobá and Wichí. The Committee requests the Government to provide information on the measures taken pursuant to the commitments assumed under Decree No. 757 of 1995 regarding the award of lands to indigenous communities in this province.

21. The Committee notes the adoption by the province of Mendoza of Act No. 6920 recognizing the ethnic and cultural pre-existence of the Huarpe Milcayac and ordering expropriation of the lands occupied by this people. It also notes that the State Prosecutor impugned the Act as unconstitutional. The Committee requests the Government to provide information on any ruling given on this matter.

22. The Committee requests the Government to provide information on progress achieved by the national programmes for the regularization and award of lands for the indigenous population of the provinces of Chubut and Jujuy.

23. Dispute settlement. The Committee notes the information supplied by the Government to the effect that a Mediation Committee has been created to settle disputes about territorial borders, and that it has an indigenous mediator. The Committee requests the Government to provide information on the measures adopted or envisaged by the provinces that have indigenous communities to inform them about the dispute settlement procedures together with information on the manner in which the indigenous mediator was chosen. The Committee also requests information on action taken by the Mediation Committee or by other mechanisms to settle disputes affecting the Felipin, Cayulef, Marafil, Caupan and Paineo communities in the province of Neuquen; the Mariano Epulef Mapuche community in the province of Chubut; the Mbya Guaranícommunity in the province of Misiones; and the Miraflores Qom indigenous community in the province of Chaco.

24. Article 15. Natural resources. In its previous comments the Committee referred to comments by the CTA alleging an absence of consultations with the indigenous peoples through representative institutions in general, and particularly in connection with natural resource exploration and use. According to the abovementioned organization, it is the Government, not the indigenous communities themselves, that determines the representative persons or institutions. According to the Alternative Report of the National Team for Social Pastoral Work and the Ecumenical Movement for Human Rights, the legislation on exploitation of natural resources does not allow for indigenous peoples to participate and be consulted in their own right, but only in the same capacity as any landowner under the Civil Code. In this connection, the Committee notes the information from the ADEP regarding the situation in the province of Jujuy to the effect that the Mining Code and the provincial legislation make no provision either for consultation of, or joint management and participation by, indigenous peoples regarding natural resources in the lands they traditionally occupy. The ADEP also mentions that a number of indigenous communities have difficulty in obtaining energy and fuel, for example for cooking and heating in student canteens, although there are gas supply lines in the province.

25. The Committee notes the information supplied by the Government to the effect that as regards raw materials, there is as yet no legislation on the participation of indigenous communities. The Committee requests the Government to report on any progress made in ensuring consultation of representatives of the indigenous communities particularly in the drafting of legislation for this purpose.

26. The Committee once again requests the Government to provide information on the measures taken to apply Articles 6, 7 and 15 of the Convention in the following cases: (a) the lands of the Hoktei T’oi community, which has reportedly lodged a complaint for unconstitutional action with the Salta Court of Justice against the deforestation of its land; (b) the case of Lhaka Honhat, lots 55 and 14, in the province of Salta, in which the community has lodged a complaint with the Inter-American Commission on Human Rights against the construction of a bridge between Argentina and Paraguay without consultation and without a socio-environmental impact study having been undertaken; (c) the sale by decree in the province of Formosa of 40,000 hectares of Chaco forest in public lands inhabited by Indian and native communities, to the Australian enterprise LIAG for deforestation; and (d) the construction of the North Andean gas pipeline in lands claimed by the Collas and which has allegedly caused three fires in the Yungas forest in the province of Salta. Lastly, the Government is also asked to provide information on the preparation and implementation of the Pilcomayo River Master Plan, the Binational Bermejo River project, and the Paraná-Paraguay waterway project.

27. The Committee requests the Government to supply information on the disputes about the use of natural resources involving the Millaqueo, Cheuquel, Painemil, Kaxipayiñ and Millain Currical Mapuche communities in the province of Neuquen. Please also keep the Committee informed of rulings regarding the complaint filed under the Constitution to the Administrative Tribunal of the province of Jujuy by members of the Liviara and Orosmayo communities alleging injury caused by the mining of alluvial gold in the Orosmayo River basin.

28. The Committee requests the Government to provide information on the manner in which indigenous communities share in the benefits of tourism based on their cultural heritage.

29. Article 16. Transfer and relocation. The Committee notes the information supplied in the Government’s report to the effect that there has been no displacement of indigenous communities. It also notes that the procedure for displacement requires the informed and freely given consent of the communities affected. The Committee notes a bill, to which it refers in its observation with the comment that the dislodging and displacement of indigenous peoples is sufficiently serious to warrant emergency legislation. Please provide further information on this matter.

30. Article 19. Agrarian programmes. The Committee notes the information in the Government’s report that there is an Agricultural Social Plan, which is nationwide in scope. The Committee trusts that the Government will provide information in its next report on the assistance afforded to the various indigenous communities through this Plan.

31. Article 20. Conditions of employment. The Committee notes the information supplied by the Government to the effect that no specific legislation has been adopted on this subject. The Committee also notes the information supplied by the ADEP, which draws attention to the absence of labour inspectors in mining, the tobacco industry and agriculture in the province of Jujuy, particularly in the La Puna region. The Committee requests the Government to provide information on employment conditions for the members of the indigenous communities working in the mining sector in the province of Jujuy, indicating the number of inspections carried out and the number of infringements reported, if any, stating the reasons and the action taken.

32. The Committee requests the Government to report on the campaigns, carried out in various parts of the country in which there is a large concentration of indigenous labour, to inform workers of their labour rights and the channels available for asserting them, and on the possibility of adopting special safeguard measures, with participation by the peoples concerned.

33. The Committee notes that pursuant to section 25(ñ), (o) and (p) of Act No. 3258 on the indigenous communities of the province of Chaco, the Chaco Institute for Indigenous Communities (IDACH) is responsible for monitoring compliance with labour law, providing indigenous people with legal assistance in filing labour claims avoiding discriminatory practices and disseminating information on labour standards among indigenous workers and their employers. The Committee would be grateful if in its next report the Government would provide information on the measures adopted or envisaged to give effect to these provisions.

34. Articles 21 and 22. Vocational training. The Committee notes the information in the communication from the ADEP to the effect that an alarming number of families are unemployed as a result of mine closures in the province of Jujuy. Please indicate the measures taken to promote, with the participation of the indigenous communities, vocational training programmes in the affected areas allowing such families to be reintegrated in the labour market.

35. Article 23. Rural handicrafts and industries. The Committee notes that, according to the ADEP, there are no programmes in Jujuy to encourage the growing of products that were traditionally part of the indigenous communities’ diet, such as the different varieties of potato, quinoa, maize, chalona, chilcal and chorqui. It also notes that in the rare assistance plans under way, the communities are given dried and canned foods, pasta and other products that are alien to their traditional diet and have less nutritional value. The Committee requests the Government to provide information on the measures taken or envisaged to assist these communities to return to traditional food growing and to start up programmes to encourage activities geared towards sustainable development.

36. Article 24. Social security. The Committee notes the information in the communication from the ADEP concerning a lack of social security coverage for the members of several indigenous communities in the province of Jujuy. The Committee requests the Government to provide information on the measures adopted or envisaged to extend such coverage to indigenous peoples throughout the country, indicating to the extent possible the affiliation rates of the last few years.

37. Article 25. Health. The Committee notes that according to the information supplied by the Government, the National Health Insurance System was established for the whole population without any social, economic, cultural or geographical discrimination. The Committee notes with concern in this connection that, according to the communication from the ADEP, there are serious malnutrition and infant mortality problems. It also notes the information concerning the scarcity of health personnel - in terms both of numbers and of specializations - in several areas of the province of Jujuy and the lack of adequate transport to visit the various regions or convey persons who need medical care. The Committee requests the Government to provide information in its next report on the measures taken or envisaged to ensure adequate medical care in regions populated by indigenous communities which are far removed from medical centres, together with information on any programmes for training members of the communities themselves.

38. Articles 26 to 29. Education The Committee notes the information supplied by the Government on the activities of the "Inter-cultural Indigenous Education Support" programme and the project "Meeting the Educational Needs of the Indigenous Population" of the Social and Educational Plan (PSE) to develop and improve education in urban and rural indigenous communities. It also notes with interest the information on the activities conducted for pupils of a number of Mapuche, Toba, Mbya-Guaraní, Mocoví, Wichí and Kolla communities which in some cases include teacher training and the production of teaching materials. It notes in particular that in developing teaching materials account is taken of the historical, geographical and cultural features of La Quebrada de Humahuaca, and that teaching materials are being developed in the Wichí language for members of the communities in the province of Formosa.

39. The Committee notes that, according to the Government, in the provinces of Misiones and Salta, despite the legislation, local education policies are still in the experimental phase.

40. The Committee requests the Government to continue to provide information on progress made in inter-cultural bilingual education (EIB), particularly in the development of teaching materials that take into account the cultural differences of indigenous peoples; the training of indigenous teachers; and the participation of the communities in education projects, particularly in the provinces of Misiones and Salta. The Committee requests the Government to provide information in its next report on the activities, and their results, conducted under the other programmes referred to in the report.

41. Article 31. Elimination of prejudice. The Committee requests the Government to provide information in its next report on educational activities to eliminate any prejudice the non-indigenous population may hold towards indigenous people.

42. Article 32. Contacts and cooperation across borders. The Committee requests the Government to provide information on any agreements that may exist with neighbouring countries to facilitate contacts and cooperation between indigenous peoples across borders. The Committee would also be grateful if the Government would provide information on activities conducted under the Cultural Integration Agreement between Argentina and Bolivia concluded pursuant to Act No. 25034 concerning the indigenous communities of both countries.

43. Article 33. Administration. The Committee requests the Government to provide information in its next report on the manner in which the activities of the INAI and the many provincial councils and institutes are coordinated in order to apply the Convention, and on coordination between the latter and the recently established "Committee to Align Domestic Legislation with the Indigenous and Tribal Peoples Convention, 1989 (No. 169), of the International Labour Organization".

44. Parts IV, V, VI, VII and VIII of the report form. The Committee requests the Government to provide the information requested under these items.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

1. The Committee notes the Government’s report and the enclosed legislative texts. The Committee notes once again that the Government does not state the employers’ and workers’ organizations to which it has sent a copy of the report, and urges it to comply with article 23(2) of the ILO Constitution.

2. The Committee takes note of the Government’s reply to the comments made by the Congress of Argentine Workers (CTA), dated 30 September 2002, supplementing those of 27 September 2001. The Committee also takes note of the content of the Alternative Report of the National Team for Social Pastoral Work and the Ecumenical Movement for Human Rights sent to the ILO Office in Argentina on 7 August 2003 noting the membership of the Confederation of Education Workers of the Argentine Republic (CETERA). The Committee also notes the communication of 28 November 2003 from the Association of Provincial Educators (ADEP) which was sent to the Government of 10 February 2004 for its observations. The Committee notes that as yet the Government has not replied to these communications.

3. The Committee notes that, according to the Government, it has sent a request for detailed information to each province, which will provide inputs to the recently formed "Committee to Align Domestic Legislation with the Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International Labour Organization". The Committee trusts that the Government will send information in its next report on the matters raised in both the communications of the CTA, particularly on those to which the Committee drew attention in its previous comments.

4. Article 1, paragraph 2, of the Convention. Legal personality. In its previous comments the Committee noted the information from the CTA to the effect that the recognition of indigenous peoples was encountering numerous problems, especially regarding legal personality, which is difficult to obtain owing to long and complicated procedures. The Committee refers to this matter in a direct request.

5. Article 4. Special measures of protection. The Committee notes that, according to the ADEP, deficiencies in health, education and work are affecting the health of members of the indigenous communities in the province of Jujuy, particularly in La Puna, La Quebrada de Humahuaca, Ramal and Valles del Sur, which were brought to light in two field studies carried out in February 2001 and January 2002. The Committee requests the Government to provide information on the measures taken or envisaged, with the participation of the peoples concerned, to safeguard the persons, institutions, property, labour, cultures and environment of the indigenous communities in the abovementioned regions.

6. Article 6. Consultation and participation. The Committee expresses its concern at the lack of information on consultation and participation of indigenous peoples pursuant to the Convention, and requests the Government to provide further information on this matter in its next report. The Committee also notes the information in the Government’s report that representatives of the indigenous communities participate, through the Episcopal Commission, in the "Committee to Align Domestic Legislation with the Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International Labour Organization". The Committee requests the Government to provide information in its next report on the number of representatives of these communities who participate in the abovementioned committee and the criteria for appointing them.

7. Article 14. Ownership and possession of lands. The Committee notes the information in the Government’s report that the legislation is to be aligned with the legal situation deriving from the constitutional reform of 1994 with regard to the regulation of land property rights in the case of indigenous communities. The Committee requests the Government to provide information on the measures adopted or envisaged - with the participation of representatives of the indigenous communities - to align the national and the provincial legislation with the Constitution.

8. In connection with this matter, the Committee notes the communication from the Ministry of Labour, dated 4 October 2004, indicating that the Executive submitted a bill to the Chamber of Deputies to declare an emergency with regard to indigenous ownership and possession of lands traditionally occupied by indigenous communities. The Committee notes that under the proposed legislation, there is to be a stay of execution of judicial decisions ordering removal of indigenous communities from lands they traditionally occupy. There is also to be a procedure for the holding of an indigenous census and the identification of lands that are currently occupied by indigenous communities or from which they have been removed or expelled. Please indicate whether the abovementioned bill has been adopted and provide information on the manner in which the indigenous peoples were consulted. The Committee recalls that according to Article 6 of the Convention, "governments shall ... consult the peoples concerned ... in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly". Such consultations must furthermore be held before the adoption of such measures. As the bodies in charge of supervising application on the Convention have noted, consultation and participation constitute the cornerstone of Convention No. 169 on which all its provisions are based. The Committee hopes that the Government will provide information on this matter in its next report.

9. The Committee notes with interest the information supplied by the Government in its report indicating the expropriation of three estates located in the provinces of Salta and Jujuy for the benefit of the indigenous communities occupying them. The Committee trusts that the Government will continue to provide information on measures taken to pursue the land award process.

10. The Committee notes that, according to the Government, an agreement has been concluded between the province of Rio Negro and the Mapuche community for the award of lands, in which the Council for the Development of Indigenous communities intervened. The Committee asks the Government to provide information in its next report on the extension of the lands that have been awarded since this agreement was concluded.

11. The Committee notes that, according to the ADEP, there is a lack of information concerning compliance with an agreement concluded between the province of Jujuy and the federal Government - approved by Provincial Law No. 5030 in 1966 - to regularize within two years 1,238,300 hectares of state-owned rural land and 15,583 state-owned urban plots. The Committee requests the Government to provide information on this matter in its next report.

12. Article 15. Natural resources. The Committee notes the information supplied by the Government to the effect that the National Constitution establishes that indigenous peoples have the right to participate in the preparation, execution and supervision of any measures that the State or an individual may carry out in their lands and/or area of influence which concern the presence of natural resources including the receipt of benefits therefrom. The Government also indicates that legislation is to be adopted to regulate mechanisms for such participation, and that the State has ownership of raw materials. The Committee requests the Government to keep it informed of progress made in drafting legislation enabling effect to be given to this provision of the National Constitution. Please also indicate whether provision is to be made for the consultation or participation of indigenous representatives in the formulation of such legislation.

13. Article 17, paragraph 1. Transmission of lands. The Committee notes that the information supplied by the Government in its report that there is compliance with the customary rules governing individual or community use and enjoyment of lands awarded on the basis of suitability, use and custom. The Committee observes that the Government says nothing about compliance with the procedures for transmission, and trusts that it will provide such information in its next report and together with any relevant legislative texts.

14. Article 30. Means of communication. The Committee notes with interest the adoption of Act No. 25.607 of 2002 on a campaign to disseminate information on indigenous rights. The Committee would be grateful if the Government would provide information in its next report  on the measures taken or envisaged, with the participation of the indigenous communities, to give effect to this Act.

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

[The Government is asked to reply in detail to the present comments in 2006.]

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee refers to its observation.

2. The Committee notes that in September 2001, the Congress of Argentinian Workers (CTA) sent detailed observations on the application of the Convention, which were forwarded by the Office to the Government in October 2001. Noting that the Government’s report does not refer to any of the matters raised by the CTA in its observations, the Committee requests the Government to supply information on these matters and, in particular, on the points raised below.

3. With reference to the legislation, the CTA indicates that the Constitution of 1994 introduced a modified regulation respecting indigenous peoples which recognizes the ethnic and cultural pre-existence of indigenous peoples and collective land ownership and possession, among other provisions. However, Act No. 23302 respecting indigenous policy and support for aboriginal communities dates from 1985 and the majority of the national and provincial laws governing this issue were adopted prior to the constitutional reform and have not been brought into conformity with the Convention. The Committee hopes that the Government will examine its legislation with this purpose in mind taking into account the fact that, to do so, by virtue of Article 6 of the Convention, governments shall 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. The Committee would be grateful if the Government would provide copies of the national and provincial legislation in force relating to indigenous peoples and if it would provide information on the manner in which it intends to bring its legislation into conformity with the Convention, with a copy of any draft legislation on this matter and an indication of the manner in which the indigenous peoples have been consulted.

4. Article 1 of the Convention. With regard to the self-identification of indigenous peoples, the CTA indicates that both the national and the provincial legislation, including the census forms, contain criteria which are not in compliance with the Convention and calls for the indigenous peoples to be consulted for the formulation of questions which would provide guidance for the indigenous census. Please indicate when it is planned to undertake the indigenous census and the manner in which the peoples concerned are participating in its preparation.

5. The CTA alleges that many problems arise in the recognition of indigenous peoples, principally related to obtaining legal personality as a result of long and complex procedures which amount to "more to the granting than the recognition of such personality". It alleges that these have serious repercussions, as the peoples concerned cannot defend their rights in the courts or before the public administration if they have not first acquired legal personality. Of the 850 indigenous communities, it states that only 15 per cent have been recognized by the National Institute of Indigenous Affairs (INAI) and, according to the CTA, no consultations were held with the communities themselves on the criteria for such recognition. Moreover, the legal personality granted at the provincial level has no value at the national level in the absence of special agreements, but only four of the 20 provinces in which indigenous peoples are located are reported to have concluded such agreements. Please indicate the manner in which the functions of the State and the provinces in relation to indigenous affairs are coordinated, and in particular the manner in which effect is given to article 75(17) in fine of the Constitution which, after determining the functions of the Congress with regard to recognition, lands and the management of resources in relation to indigenous affairs, provides that "the provinces may discharge these functions concurrently".

6. Articles 6, 7 and 15. The CTA alleges the absence of consultations with indigenous peoples through representative institutions in general, and particularly with regard to the exploration and exploitation of natural resources. According to these allegations, the State decides on the persons or institutions which are representative, and not the indigenous communities themselves. It adds that, despite the fact that the Constitution of 1994 sets out in article 75(17), referred to  above, that the functions of the Congress include ensuring the participation of indigenous peoples in the management of their natural resources and other interests which affect them, in the cases of the Binational Río Bermejo Project and the Paraguay Paraná Waterway Project, there was no participation by the indigenous peoples, but only by provincial and state institutions responsible for indigenous affairs. According to the CTA, it fears that the same may occur with the Río Pilcomayo Master Plan which will affect some one million persons and which is under preparation, and it calls for consultations to be held with the peoples concerned through their own institutions. The Committee hopes that the Government will adopt measures in accordance with these provisions of the Convention and that it will provide information on the situation and the measures adopted in relation to the three projects referred to here.

7. The Committee would also be grateful if the Government would provide information on the following cases referred by the CTA: (a) the lands of the Hoktei T’oi community, which is reported to have lodged an appeal for unconstitutional action with the Court of Justice of Salta against the deforestation of its land; (b) the case of Lhaka Honhat, lots 55 and 14, in the province of Salta, in which the community has lodged a complaint with the Inter-American Commission on Human Rights relating to the construction of a bridge between Argentina and Paraguay without consultations and without having undertaken a socio-environmental impact study; (c) the sale by Decree in the province of Formosa of 40,000 hectares of Chaco forests in public lands inhabited by indigenous and Creole communities, to the Australian enterprise LIAG for deforestation; and (d) the construction of the North Andean gas pipeline in lands which are claimed by the Collas and which is reported to have caused three fires in the Yungas forest in the province of Salta. Please also provide information on the measures adopted to give effect to Articles 6, 7 and 15 of the Convention in the cases mentioned here.

8. Land. The CTA states that the forms of ownership provided for in the Civil Code, which is of Roman law origin, are inadequate for the recognition of the possession and ownership of ancestral lands and that their application results in indigenous communities losing most of the claims that they make to land ownership. It refers in particular to the problem in the province of Rio Negro, in which Mapuche Indians live, and alleges that the Government of the province is promoting a review of the ownership of public lands, 75 per cent of which are reported to be indigenous, with a view to using them as a guarantee for international financial institutions in order to obtain new loans. It adds that a study carried out by the State with international assistance, the results of which were published in the study entitled "Patagonia XXI", affirms that the desertification of Patagonia requires the evacuation from rural areas of producers with flocks of fewer than 6,000 sheep and recommends the provision of incentives to encourage the migration of small farmers, which include Mapuche Indians. The Indigenous Adviser in Rio Negro (CAI) is opposed to the policy of the regularization of land ownership as proposed by the Government of Rio Negro. The CTA also alleges that there are cases in the province of irregular cartographic entries, the illegal granting of ownership rights, the illegal purchase of possession rights, unlawful transfers of property and possession rights acquired illegally and pressure to sell land at very low prices. Please provide information on the policy of regularizing land title in the various provinces, including Rio Negro, with an indication of the situation in law and practice. Please indicate in particular the measures adopted or envisaged to determine the lands traditionally occupied by the peoples concerned and to ensure effective protection for their rights of ownership, as well as the procedures used to resolve land claims.

9. The CTA also makes comments on other Articles of the Convention, which the Committee will examine together with the Government’s next report.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee notes the Government’s first report and its annexes. It regrets to note that the Government’s brief report only provides information on certain of the Articles of the Convention, and that it does not include the information necessary in a first report to enable the Committee to carry out a detailed examination, such as copies of any relevant national and provincial legislation. It also does not indicate the employers’ and workers’ organizations to which a copy of the report was communicated. In addition, it was received after the beginning of the Committee’s session, too late to be examined in detail this year.

2. The Committee notes that in September 2001, the Congress of Argentinian Workers (CTA) sent detailed observations on the application of the Convention, which were forwarded by the Office to the Government in October 2001. Noting that the Government’s report does not refer to any of the points raised by the CTA in its observations, the Committee requests the Government to provide information in this respect, and particularly on the points indicated below, which are examined in greater detail in a request addressed directly to the Government.

3. With reference to the legislation, the CTA indicates that the Constitution of 1994 introduced an amended regulation relating to indigenous peoples, recognizing the ethnic and cultural pre-existence of indigenous peoples and their collective ownership and possession of lands, among other provisions. Nevertheless, Act No. 23302 respecting indigenous policy and support for aboriginal communities dates from 1985 and the majority of the national and provincial laws on this subject are earlier than the constitutional reform and have not been brought into conformity with the Convention.

4. Article 1 of the Convention. With regard to the self-identification of indigenous peoples, the CTA points out that both the national and provincial legislation, as well as the census forms, contain criteria which are not in compliance with the Convention and it calls for indigenous peoples to be consulted for the formulation of questions which would guide the census of indigenous peoples.

5. The CTA alleges that numerous problems arise in the recognition of indigenous peoples, principally with regard to the granting of legal personality, due to long and complex procedures.

6. Articles 6, 7 and 15. The CTA alleges the absence of consultations with indigenous peoples through representative institutions in general, and particularly in connection with the exploration and exploitation of natural resources.

7. Land. The CTA states that the forms of ownership set out in the Civil Code, which is of Roman law origin, are inadequate for recognition of the ownership and possession of ancestral lands, and that the way they are applied results in indigenous peoples’ losing most of the claims they lodge for land rights.

8. The CTA also makes comments on other Articles of the Convention, which will be examined by the Committee together with the Government’s next report.

9. The Committee notes another communication from the CTA, received in November 2002, indicating among other information that a Bill has been submitted to the Senate establishing the Programme of Basic Social Infrastructure for Indigenous Communities. It requests the Government to provide a copy of this Bill and to indicate the consultations held in accordance with Article 6 of the Convention.

10. The Committee requests the Government to report in detail before 30 September 2003, so that its report can be examined during the Committee’s next session. It also hopes that the Government will communicate a copy of its report to employers’ and workers’ organizations.

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