Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations by the Confederation of Workers of Argentina (CTA Autonomous) and the General Confederation of Labour of the Argentine Republic (CGT RA), received on 1 and 2 September 2015 respectively.

Articles 6 and 15 of the Convention. Consultation. With regard to the observations made in 2012 by the International Organisation of Employers (IOE) expressing concern at the difficulties of applying and interpreting the prior consultation requirement, the Committee notes that the Government indicates in its report that it understands the rationale behind the IOE’s observation in that the requisite prior conditions must be met in order for the Convention to be applied effectively. The Government further indicates that forums for consultation are being built progressively and that the process is a medium to long-term one. The Government says that the Convention is a standard to be achieved, which means establishing the necessary agreements, areas of action and instruments for its implementation. The Committee notes that the CTA Autonomous, for its part, expresses concern at the lack of adequate legislative measures to ensure observance of the rights of indigenous peoples over natural resources and to facilitate prior consultation. The Committee requests the Government to continue to provide information on the evolution of the consultation procedures and on the manner in which the rights of indigenous peoples, in particular with respect to their rights to natural resources, are safeguarded.

Articles 6 and 7. Council for indigenous participation. With regard to the functioning of the Council for Indigenous Participation (CPI), the Government indicates that the amendment of the Regulation on the Functioning of the Council for Indigenous Participation was approved by Resolution No. 737/2014, adopted by the National Institute of Indigenous Affairs (INAI) on 5 August 2014. The Committee notes with interest that, pursuant to the amendment, the CPI is recognized as a body for consulting the communities of the various indigenous peoples that live in Argentina. With regard to the concern expressed by the CTA Autonomous, on the representativeness of CPI, the Committee notes that, according to the Government, between July 2013 and June 2015 the INAI called on 635 communities to elect representatives to the CPI, and as a result it is composed of 134 representatives belonging to 33 peoples. The Government indicates that the National Coordinating Committee of the CPI has set up six working committees which discuss, among other matters, issues related to indigenous policy and legislation, the land survey, legal status and “well-being” (health, education, housing), cooperatives and living conditions. The Committee requests the Government to continue to provide information on the manner in which the consultation and participation of indigenous peoples is ensured in the framework of the CPI.

Article 14. Lands. With regard to the inclusion of indigenous community ownership in the national legislation, the Committee notes with interest that section 9 of Act No. 26994, published on 8 October 2014, approving the Civil and Commercial Code of the Nation, provided that “the rights of indigenous peoples, particularly community ownership over the lands they traditionally occupy and such other lands as are suitable and adequate for human development, shall be the subject of a special law”. Furthermore, section 18 of the Civil and Commercial Code of the Nation establishes that “Recognized indigenous communities have the right to community ownership and possession over the lands they traditionally occupy and such other lands as are suitable and adequate for human development as established in the law, in accordance with the provisions of article 75(17) of the National Constitution”. The Government reports that following an analysis and discussion that took place between February and July 2015 in a process that included working sessions with provincial governments, the representatives of indigenous communities, the Coordination Council, the Meeting of Indigenous Peoples’ Territorial Organizations and the Union of the Diaguita people of Tucumán, a draft bill was prepared for the implementation of indigenous ownership. The draft bill was sent to the national plenary of the CPI in July 2015 and is to be submitted to parliament. The Committee requests the Government to provide information on any impact the Civil and Commercial Code of the Nation has had in terms of promoting the rights of indigenous peoples, and on developments regarding the special bill on indigenous ownership.

Survey and regularization of land. The Government indicates that the National Programme for the Cadastral Survey of Indigenous Communities is being carried out by means of agreements and arrangements for joint implementation in the provinces of Buenos Aires, Chaco, Chabut, Formosa, Misiones, Neuquén and Río Negro. In provinces where there is no agreement and in communities requesting priority treatment, implementation of the cadastral survey is centralized. The Committee notes with interest the information sent by the Government to the effect that some 7,193,789 hectares have been surveyed, accounting for nearly 80 per cent of the number of hectares initially estimated and covering a total of 662 communities distributed through 20 provinces. The Committee requests the Government to continue to provide up-to-date information on the processes under way to survey and regularize indigenous community lands in each of the provinces of the country.

Province of Formosa. Navogoh Qom Community (La Primavera). Land demarcation. The CGT RA, concerned at the situation of the Navogoh Qom community, expresses the hope that the national and provincial authorities will hear the members of the community and that the complaints relating to the occupation of community lands for the construction of housing complexes without regard for the community’s cultural norms will be elucidated. The Government indicates that between July and December 2013, the cadastral survey was carried out in the Potae Napocna Navogoh Qom community, but that only part of the community has endorsed the survey’s results. The Committee requests the Government to provide information on the manner in which it applies the provision of the Convention in Formosa and protects the rights of the Navogoh Qom community. It further requests the Government to report on developments in the cases currently before the Supreme Court of Justice of the Nation regarding the land disputes affecting the Navogoh Qom community.

The Committee is raising other matters in a request addressed directly to the Government.