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

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

Article 1 of the Convention. Self-identification. In the report received in August 2012, the Government states that, since the Convention came into force, the term “ethnic group” has been replaced by the term “indigenous people”. The 2011 National Socio-Economic Characterization Survey (CASEN) recognizes the existence of 1,369,563 indigenous persons in Chile, equivalent to 8.1 per cent of the estimated population of the country. In reply to the comments made in 2012, the Government indicates that sections 60 and 61 of the Indigenous Act recognize the indigenous status of the Huilliche and Pehuenche communities. Moreover, in the records of the sessions for the adoption of the Indigenous Act, note was made of the existence of communities who have little representation at present. The Committee refers to the observations made by the indigenous organizations in 2010 and requests the Government to continue providing information on the steps taken to ensure that the Changa, Chono, Huilliche and Pehuenche peoples are protected by measures designed to give effect to the provisions of the Convention.

Article 3. Human rights and fundamental freedoms. The Government indicates that, as a result of the restrictive application since 2009 of Act No. 18314 establishing penalties for terrorist acts, there have been only 42 cases involving terrorist offences and only eight of these were concerned with events in the Araucanía region. Out of 22 cases before the courts where the accused are indigenous persons, only one involves offences covered by Act No. 18314. The Government also indicates that the police are receiving training on indigenous culture, that the Carabineros de Chile (police) have incorporated operational support units to cater for indigenous communities and that training programmes for police officers, detectives and prison service officials include material on human rights and non-discrimination. Recalling the concern expressed by the indigenous organizations in 2010, the Committee invites the Government to continue providing information on the steps taken to ensure that no force or coercion is used in violation of the human rights and fundamental freedoms of the peoples concerned.

Articles 2 and 33. Coordinated and systematic action with the participation of indigenous peoples. New institutions for indigenous peoples. In its report, the Government includes examples of participative bodies for indigenous peoples in the country, such as the 1,120 coordination and monitoring boards set up in 2012 and 2013 by the Agricultural Development Institute (INDAP), involving the participation of representatives of indigenous communities in investment planning. Funding for these boards has been in excess of 350 million pesos. The Government also states that in May 2012 the President of the Republic proposed to the original peoples the establishment of the Ercilla Indigenous Development Area, with a view to creating entities for the ongoing participation of the various indigenous organizations in the area in decisions affecting them. The Government also indicates that, under Act No. 20249 establishing indigenous marine coastal areas, the Fisheries Department authorized the creation of an indigenous marine coastal area (ECMPO) encompassing a sector of seabed and area of water at Punta Capitanes in the Los Lagos region, to be administered by the Altué indigenous community. The Committee requests the Government to continue providing examples of how the effective participation of indigenous peoples is ensured in the institutions that administer the programmes affecting them. The Committee hopes that the Government will be in a position to report on the outcome of consultations concerning indigenous institutions and on the manner in which account has been taken of indigenous peoples’ concerns and priorities.

Environmental impact studies. The Committee notes the entry into force on 24 December 2013 of Decree No. 40 issuing the regulations concerning the Environmental Impact Assessment System (SEIA). The regulations state that entry to this system is via an environmental impact declaration (DIA) or, where the project or activity involves one of the scenarios covered by the regulations, via an environmental impact study (EIA). The Committee notes that section 85 of the SEIA regulations reflects the terms of Article 6(1)(a) and (2) of the Convention in stipulating that, in EIA cases which directly affect indigenous peoples, a process of consultation with the peoples concerned shall be formulated and implemented. According to section 86 of the SEIA regulations, in the case of projects submitted to the SEIA with declarations and certain studies which do not apparently result in the peoples concerned being directly affected but are located on indigenous lands or in their vicinity, provision is made for holding “meetings” with the peoples concerned in order to hear their views, analyse them and, if necessary, resubmit the project as an EIA case directly affecting the peoples concerned and organize consultations. Section 27 of the regulations covers the possibility that, prior to input into the SEIA of a project likely to directly affect indigenous peoples, the unit concerned considers the decision-making machinery, customs and organizational structures of such groups and holds “meetings” with the peoples concerned with a view to gathering their opinions and taking account of them in decisions. Nevertheless, if a project submitted to the SEIA entails the transfer or relocation of indigenous peoples (section 7 of the SEIA regulations), the free and fully informed consent of the peoples concerned must be obtained, irrespective of the other situations provided for in Article 16(3), (4) and (5) of the Convention. The Committee invites the Government to continue providing information on the appeal for protection filed by a number of indigenous organizations against the SEIA regulations. The Committee also invites the Government to provide information in its next report on the manner in which the consultation procedures included in the SEIA regulations ensure the effective application of Articles 6 and 7 of the Convention. Should an environmental impact study entail the exploitation of resources on indigenous lands and/or the resettlement of indigenous communities, the Committee requests the Government to indicate how compliance with all the provisions of Articles 15 and 16 of the Convention is ensured.

Natural resources. The Government indicates in its report that licences for mining operations are granted through judicial decisions, not through administrative measures, and that only the latter measures can be subject to consultation. Projects or activities likely to have an environmental impact which must be submitted to the SEIA, as provided for by section 3 of the regulations, do not include mining operations at the post-survey exploration stage or the exploitation stage. The Committee once again requests the Government to amend the national legislation so as to ensure that indigenous peoples are consulted before any programme is undertaken or authorized in relation to natural resources on their lands and are able to participate in the benefits deriving from the exploitation of those resources. The Committee hopes to be able to examine information showing that the rights of indigenous peoples to natural resources, as set out in Article 15 of the Convention, have been safeguarded.

Health and education. The Committee notes the entry into force on 13 October 2012 of Act No. 20584 regulating rights and duties in relation to the provision of health care. Section 7 of the Act provides for the recognition, protection and reinforcement of knowledge and practices of the healing systems of original peoples. The Government indicates that, by Special Decision No. 665 of the Ministry of Health of 25 November 2012, a working party was set up at the Ministry of Health whose purpose is to propose regulations containing an inter-cultural health model approved by the indigenous communities. The Committee notes that in 2012 the Language Revival Plan was launched with the objective that 20,000 persons belonging to indigenous peoples should recover their languages through ancestral teaching methods and via their elders. During the first year of the programme, 10,000 persons were trained and it is planned to continue training the same number of persons each year. The Government indicates that as at December 2012 there were 356 schools implementing the Bilingual Inter-Cultural Education Programme and another 200 implementing cultural and indigenous language revival strategies with preferential subsidies. The Committee invites the Government to continue providing information on the progress made in relation to the provisions of the Convention relating to health (Article 25) and education (Articles 26 and 27). The Committee also requests the Government to provide information on the manner in which progress has been made in the application of the other provisions of Parts V and VI of the Convention.

[The Government is asked to reply in detail to the present comments in 2015.]