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

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

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.]