Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (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.