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

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

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.