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

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

Legislation. The Committee notes Chile’s wide-ranging and comprehensive legislation on the rights of indigenous peoples. It notes in particular Indigenous Act No. 19523 of 1993, Presidential Resolution No. 5/2008 establishing indigenous units in each ministry and Decree No. 124 of 2009 regulating the consultation and participation of indigenous peoples. The Committee also notes Act No. 19300 of 1994 approving the general basis for the environment; Act No. 20249 of 2009 establishing the Marine Coastal Areas of Indigenous Peoples; the Mining Code, 1983; the Act on geothermal energy concessions, 2000; the Water Code, 1981; Act No. 18314 of 1984 which determines terrorist conduct and the applicable penal sanctions; and Act No. 20467 which amends Act No. 18314.

Article 3 of the Convention. Human rights and fundamental freedoms. The Committee notes that Act No. 18314, which defines terrorist acts and determines the applicable penal sanctions, has been applied to Mapuche peoples in the context of social protest action instead of the Penal Code, which is general in nature. The persons charged with such offences have been tried by military tribunals. The Committee notes that this situation has given rise to a serious dispute between the Government and the Mapuche peoples. The Committee notes with interest that on 1 October 2010 an agreement was reached between the Mapuche communities concerned and the Government in which the latter undertook to desist from accusations of terrorist acts and treat the actions concerned under ordinary penal law, and to continue to promote, in the National Congress, the amendments to the Code of Military Justice to enable civilians to be tried in the ordinary courts thereby avoiding a double trial, and to establish a forum for dialogue between the Government and the indigenous institutions in an attempt to reach agreement on other controversial issues. The Committee notes that, pursuant to this agreement, on 5 October 2010 Act No. 20467 was approved which amends the provisions of Act No. 18314 restricting the concept “terrorist” and eliminating the presumption of terrorism for setting fire to woodlands, crops, pastures, foothills and plantations. Furthermore, a bill has been drafted setting limits to the scope of application of military law and providing that no civilian may be subject to military jurisdiction. The bill has been approved but is awaiting review by the Constitutional Court, pursuant to a request of the Congress. Furthermore, on 24 September a process known as the “historic dialogue round-table forum” was launched in Temuco in which the national and regional authorities responsible for indigenous policy and more than 40 representatives of indigenous organizations and communities participate. The Committee requests the Government to continue to provide information on progress in this area.

Article 1. Self-identification. The Committee notes that, according to section 1(2) of Indigenous Act No. 19253 (the Indigenous Act), the State recognizes as the main indigenous ethnic groups the Mapuche, Aymara and Rapa Nui (Easter Island) peoples, the Atacameño, Quechua, Colla and Diaguita communities from the north of the country, the Kawashkar or Alacalufe and Yámana or Yagan communities of the channels of southern Chile. The Government indicates that the census of 2002 showed that, out of a population of 15,116,435 inhabitants, 692,192 (4.6 per cent) stated that they belong to one of the peoples covered by the census. The largest is the Mapuche people, accounting for 87 per cent of the total, second comes the Aymara people (7 per cent) and, in third place, the Atacameño people (3 per cent). The other ethnic groups account for 2.7 per cent. As to distribution by sex, there is a slight predominance of men over women. According to the National Socio-economic Characterization Survey (CASEN) of 2009, 1,188,340 persons identified themselves as members of indigenous peoples, the equivalent of 7 per cent of the population. There are currently 2,934 indigenous communities and 1,586 indigenous associations. Indigenous peoples are present throughout the country, especially in urban areas. Distribution according to ethnic group is heterogeneous. The Committee also notes that sections 2–3 of the Indigenous Act refer to the conditions to be met and the evidence to be provided in order to be considered indigenous and the means of registering this.

African descendants. The Committee notes there is currently a bill for the recognition of ethnic groups of African extraction. The Committee requests the Government to report on the stage the bill has reached in Parliament and to provide a copy of the legislation, once it has been adopted.

Articles 2 and 33. Coordinated and systematic action with the participation of indigenous peoples. The Committee notes the various legislative and administrative measures and the programmes adopted by the Government to develop coordinated and systematic action with a view to protecting the rights of the indigenous peoples and ensuring respect for their integrity. The Committee notes in particular: (1) the Indigenous Act establishing the National Corporation for Indigenous Development (CONADI), which is responsible for promoting, coordinating and carrying out government action on comprehensive development for indigenous persons and communities in the economic, social and cultural fields and promoting their participation in the life of the country; (2) Presidential Resolution No. 5 of 2008 establishing a strategy that involves the creation of an indigenous affairs unit in each ministry or local authority in order to examine and adapt the policies, programmes and plans of each ministry to incorporate indigenous membership; (3) Supreme Decree No. 101 of 7 June 2010 of the Ministry of Planning, establishing the Council of Ministers for Indigenous Affairs which is responsible for advising the President on the formulation and coordination of public policies relating to indigenous peoples; and (4) Supreme Decree No. 124 establishing a consultation mechanism enabling indigenous peoples to express their opinions on certain legislative and administrative measures, and a mechanism for participation enabling indigenous peoples to take part in the formulation, application and evaluation of plans and programmes for national and regional development that are likely to affect them directly. The Committee also notes that, according to the Government, consideration is being given to the possibility of amending the current system and dividing the duties currently performed by CONADI so that a multi-sectoral body has responsibility for devising policy, CONADI becomes an Indigenous Development Agency with executive and technical duties, and the representation of indigenous peoples is the responsibility of a council that is national in scope and plays an advisory role in policy formulation. The Committee further notes that Parliament is currently assessing a bill for the creation of a ministry of indigenous affairs. The Committee requests the Government to provide information on: (i) whether the bill to change the institutional structure and division of duties of CONADI, referred to by the Government in its report, has been, or will be the subject of consultation with the indigenous peoples, and how the Indigenous Advisory Council is to be run so as to ensure more effective participation by indigenous peoples; (ii) how this new institutional structure will impact on the indigenous affairs unit of each ministry established by Presidential Resolution No. 5 of 2008; and (iii) what stage the bill to create a ministry of indigenous affairs has reached in Parliament.

Articles 6 and 7. Consultation and participation. The Committee notes that section 34 of the Indigenous Act requires the state’s administrative services and the territorial organizations, when dealing with matters that impinge on, or relate to, indigenous issues, to hear and consider the opinions of the indigenous organizations recognized by the Act, and provides that, in communes of high indigenous density, indigenous peoples shall be represented in the participation bodies recognized for other intermediary groups. The Committee also notes that Decree No. 124 of 2009, implementing section 34 of the Indigenous Act issuing provisional regulations on consultation and participation, provides that indigenous peoples shall be consulted on the procedure for consultation and participation. The Committee notes with interest that, according to the Government, consultations with indigenous peoples are already taking place. The Government also indicates that a first round of meetings has already been held in the regional indigenous forums, with the participation of representatives of the ILO. With a view to assisting the Government in this process, the Committee draws its attention to its general observation of this year under the Convention. It also makes the following comments on some of the provisions of Decree No. 124, which could be taken into account in these consultations.

–      Sections 16 and 21 of the Decree appear to leave the decision to the administrative bodies to determine whether it is appropriate to start a consultation or participation process.

–      Section 7 of the Decree appears to limit consultation exclusively to indigenous lands or areas of indigenous development … or refers to a significant majority of specified or specifiable indigenous communities, associations and organizations.

–      Section 14 appears to limit consultations to the initial formulation of legislation.

–      Section 15 of the Decree appears to lack clarity in providing for exceptions to consultations as regards emergency cases or the necessities for the proper operation of the respective bodies.

The Committee requests the Government to provide information in its next report on the manner in which these points have been taken into account. It also asks the Government to continue to provide information on developments in the process of consultation with indigenous peoples currently being conducted with a view to drafting new regulations on consultation.

Article 7. Process of development. Participation. The Committee notes the information provided by the Government indicating that public management instruments have been developed so as to incorporate the needs and interests of indigenous organizations in government policies and programmes. The Committee notes in particular that the Indigenous Act contains a number of provisions to increase the participation of indigenous peoples, including: (1) section 34 provides that, in regions with a high density of indigenous peoples, these peoples shall be represented in the participation bodies recognized for other intermediary groups; and (2) provision is made for the participation of eight indigenous councillors in CONADI. CONADI in turn participates in all government programmes, measures and policies that concern indigenous peoples. The Committee further notes the Government’s indication concerning the institutionalization of the regional indigenous forums. The Committee requests the Government to: (i) specify the participation bodies referred to in section 34 of the Indigenous Act and the level of indigenous participation in these bodies; and (ii) provide more information on the proposal for institutionalizing the regional indigenous forums, which is to be submitted for discussion with the indigenous peoples. The Committee requests the Government to provide information on any developments in this respect.

Environmental impact studies. The Committee notes that Act No. 19300 approving the general basis for the environment created the Environmental Impact Evaluation System (SEIA) (Enabling Decree No. 95/2001) and provides that the State shall facilitate participation by citizens, allow access to information and promote education campaigns. The Committee observes that this mechanism provides for participation by citizens in general but does not establish a requirement for specific consultation of indigenous peoples that ensures, in accordance with Article 7(3) of the Convention, that studies to assess the social, spiritual, cultural and environmental impact of development activities are carried out in cooperation with the indigenous peoples. The Committee requests the Government to indicate the manner in which indigenous peoples are able to cooperate in the environmental impact studies, as provided for in Article 7(3) of the Convention.

Article 14. Lands. The Committee notes that the Indigenous Act: (1) recognizes the importance of land in the indigenous culture and provides that the State has a duty to protect it, ensure its proper use and ecological balance and seek to extend it (section 1); (2) establishes arrangements for land occupancy, which may be individual or collective (section 12); (3) creates the Indigenous Lands and Water Fund, administered by CONADI, with a view to extending indigenous lands by the grant of subsidies for land acquisition, the financing of mechanisms for the solution of land-related problems, and financing of the regularization of the acquisition of water rights (section 20); (4) also contains provisions on the division and inheritance of indigenous lands (sections 16–17); and (5) provides for a mechanism to deal with indigenous land claims (sections 55–59). Such issues are settled by properly qualified judges in a special and expedited procedure provided for in the Act. The Committee notes the Government’s statement that, according to CONADI, the surface area of indigenous lands is 1,161,074 hectares and that, between 1994 and 2010, it increased by 667,457 hectares. The Committee also notes that in its report the Government refers to the reactivation of the mechanisms for handing over lands to indigenous people in transparent and objective conditions. Every conveyance of land is to be accompanied by a “productive support agreement”. Furthermore, a process of dialogue with public and private stakeholders and with indigenous organizations has been launched in order to gather their views on other improvements to be made. The Committee requests the Government to provide information on the results of the dialogue process launched with a view to improving land conveyance mechanisms and the measures adopted subsequently, examples of the use of the dispute settlement procedure and information on lands that have been returned to indigenous peoples under this mechanism.

Article 15. Natural resources. The Committee notes the Government’s statement that various methods have been established for safeguarding indigenous rights to natural resources, including: (1) Indigenous Development Areas (sections 26 et seq. of the Indigenous Act); (2) special protection for water use rights for the Atacameño and Aymara peoples (section 64 of the Indigenous Act); and (3) establishment of the Marine Coastal Area of the Indigenous Peoples (Act No. 20249). The Committee also notes that, according to the Government, the State retains ownership of minerals and the subsoil and that there are exploitation rights for water which are not necessarily granted to the owner of the real estate where the water is located. The Committee notes that section 122 of the Mining Code provides that, where a mining concession involves applying for surface rights, the surface owners shall be compensated. The Committee also notes that section 5 of Decree No. 124 provides that “projects for investment in indigenous lands or areas of indigenous development … , where appropriate, shall be subject to the consultation or participation procedures envisaged in the rules governing the sector concerned, provided that the competent state administration body may, in addition, apply the consultation procedure laid down in [the Decree]”. The Committee notes that the Mining Code, the Act on geothermal energy concessions and the Water Code contain no provisions on the consultation of indigenous peoples concerning investment projects that involve concessions for use or development. The Committee reminds the Government in this context that, according to Article 15 of the Convention, the State has a duty to establish or maintain procedures through which they shall consult the peoples concerned with a view to ascertaining whether and to what degree their interests would be prejudiced. The Committee requests the Government to take the necessary steps to ensure that national legislation is aligned with the Convention so that indigenous peoples are consulted on investment projects likely to affect them directly, and can participate in the benefits deriving from the exploitation of mineral resources.