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

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

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.]