Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

The Committee notes that in March 2016 the Governing Body adopted the report of the tripartite committee appointed to examine the representation made by the First Inter-Enterprise Trade Union of Mapucho Bakers of Santiago (GB.326/INS/15/5) and invited the Government to provide the Committee of Experts with information on this matter.

Articles 6 and 7 of the Convention. 1. Regulations on consultation of indigenous peoples. In relation to its previous comments, the Committee welcomes the adoption of Supreme Decree No. 66 of 2014 adopting the Regulations on the Consultation of Indigenous Peoples, in accordance with Article 6(1)(a) and (2) of the ILO Convention No. 169. The Committee observes that the adoption of the Regulations forms part of a broad process of consultation with the participation of indigenous peoples as determined by the peoples themselves. Title II of the Regulations describes the principles of consultation and title III describes the consultation procedure. Section 7 of the Regulations provides that the state administrative bodies shall consult the indigenous peoples whenever administrative or legislative measures are planned that may affect them directly and defines such measures as those that “may have a direct, significant and specific impact on indigenous peoples as such by affecting the exercise of their traditions and ancestral customs; their religious, cultural or spiritual practices; or their relationship with their lands”. According to section 13, the responsible body can request a report from the Office of the Deputy Secretary for Social Services at the Ministry of Social Development on whether it is appropriate to hold consultations. Moreover, any natural or legal person concerned or representative institution may submit to the body responsible for the measure a motivated request for the holding of consultations. The Committee notes that the tripartite committee asked the Government to send information on the implementation of the Regulations and, in particular, asked whether the implementation thereof had restricted the definition of legislative and administrative measures that may affect indigenous peoples directly.

The Committee notes that the Government includes in its 2015 and 2016 reports a detailed list of requests from various state administrative bodies for reports on the appropriateness of consultations which have been processed by the Office of the Deputy Secretary for Social Services. The Government indicates that the National Unit for Indigenous Consultation and Participation at the Deputy Secretary’s Office is responsible for evaluating requests to assess the appropriateness of consultations prioritizing the existence of elements of traditions, ancestral customs, religious, cultural or spiritual practices, or the relationship of peoples with their lands, without the “significant and specific” criteria established in the Regulations on consultation being a particularly crucial element. The Committee also notes the information provided on each of the five stages of the consultation process, namely: planning, information, internal discussions, dialogue and systematization. The Government describes a series of consultations which have been held, including those on the bill drawn up by the Ministry of Culture, Arts and Heritage, the bill concerning the joint administration of the Rapa Nui National Park, and the bill establishing the Biodiversity and Protected Areas Department and the National Protected Areas System. The Committee requests the Government to continue providing information on the consultations held concerning measures that may affect indigenous peoples, and also on the cases in which the National Unit for Indigenous Consultation and Participation has decided that consultations are not appropriate and on any complaint submitted by representatives of indigenous peoples in this respect.

2. Projects or activities that come within the scope of the Environmental Impact Assessment System. In its previous comments, the Committee noted Supreme Decree No. 40 of 2013 issuing the Regulations concerning the Environmental Impact Assessment System (SEIA) (hereinafter SEIA Regulations). Projects are entered in this system via an environmental impact statement or, where the project or activity involves one of the scenarios covered by the SEIA Regulations, via an environmental impact study. In impact study cases which directly affect indigenous peoples, the Decree provides that a process of consultation shall be formulated and implemented. In the case of projects submitted to the SEIA with an impact statement 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 and, if necessary, for resubmitting the project as an impact study case which directly affects the peoples concerned and therefore requires a consultation process. Nevertheless, if a project that comes within the scope of the SEIA entails the transfer or relocation of indigenous peoples, the free and fully informed consent of the peoples concerned must be obtained. The Committee observed, however, that the SEIA Regulations do not cover the other situations provided for in Article 16(3), (4) and (5) of the Convention.

The Committee notes that section 8 of the Regulations on the Consultation of Indigenous Peoples provides that environmental assessment decisions for projects or activities that come within the scope of the SEIA and require consultations with the indigenous peoples, pursuant to the corresponding legal provisions, shall be subject to consultation using the consultation procedure established in the SEIA Regulations. The Committee recalls that the tripartite committee asked the Government to provide information to show that, before environmental impact decisions are adopted in favour of projects or activities that may affect indigenous peoples directly, the requirements established in Articles 6, 7 and, where appropriate, 15 and 16 of the Convention have been met. Moreover, the Government was invited to indicate the manner in which it is ensured that, in projects that may affect indigenous peoples directly that have been approved by the SEIA, the requirements of the abovementioned provisions of the Convention have been met.

The Committee notes the detailed information provided by the Government on the separate stages of the consultation process implemented in the context of the SEIA; on how and when meetings are held to receive and consider the views of representatives of the indigenous peoples in the areas affected by the projects; and on the wide range of projects which must be submitted to the SEIA with an environmental impact study. The Government indicates that an advisory board was set up to evaluate and propose any reforms or adjustments to the SEIA which were necessary. The issues identified were grouped into five strategic areas and included public participation and the consultation of indigenous peoples. In July 2016, the Committee submitted proposals and recommendations to the executive authority, five of which are concerned with the consultation of indigenous peoples. The Government indicates that any measures entailing amendments to the legislation concerning the consultation of indigenous peoples must themselves be the subject of consultation. The Committee hopes that the Government, on the occasion of the reform of the SEIA, will ensure the effectiveness of the mechanisms for the consultation and participation of indigenous peoples, and also for cooperation with them, as provided for by Articles 6, 7, 15 and 16 of the Convention. The Committee requests the Government to provide information on the consultations held concerning any proposal to amend the legislation regarding consultation of the indigenous peoples in the context of projects that come within the scope of the SEIA.

Articles 2 and 33. Coordinated and systematic action with the participation of indigenous peoples. Both the Committee of Experts in its previous comments and the tripartite committee asked the Government to provide information on the outcome of consultations concerning indigenous institutions and on the manner in which account has been taken of indigenous peoples’ concerns and priorities. The tripartite committee referred to the consultations held in relation to preliminary draft legislation for establishing a national council of indigenous peoples and indigenous peoples’ councils and also a ministry of indigenous peoples. The Committee notes the detailed information sent by the Government on the five stages of the consultations held on the preliminary draft legislation with the indigenous peoples concerned, culminating in January 2015 with a national meeting with representatives of the nine indigenous peoples. The Committee observes that in January and May 2016, the President of the Republic submitted the bills for the establishment of the abovementioned institutions to the Chamber of Deputies. According to the terms of the bills, it will be for the national council of indigenous peoples to represent the interests, needs and collective rights of the indigenous peoples as a whole. The nine indigenous peoples’ councils will represent the interests, needs and collective rights of the respective indigenous peoples concerned vis-à-vis the institutions of the State and in consultation processes in particular. The Committee also notes the detailed information provided by the Government concerning the powers and functions of a ministry of indigenous peoples. The Committee trusts that the abovementioned bills will be adopted in the near future and requests the Government to indicate the manner in which the activities of a National Council of indigenous peoples, indigenous peoples’ councils and the establishment of a ministry of indigenous peoples will contribute to the effective participation of the indigenous peoples in any administrative and legislative decisions taken on subjects of relevance to them. Noting that the bill provides for the formulation of an indigenous national policy which is required to promote the full exercise of the social, economic and cultural rights of indigenous peoples, the Committee requests the Government to indicate how the full participation of indigenous peoples is ensured in the development of coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity.

Article 14. Lands. In its previous comments, the Committee referred to the concerns expressed by the trade unions and indigenous peoples concerning the difficulties related to regularizing the rights to lands claimed by indigenous peoples. The Committee notes the Government’s indication that the State guarantees the effective protection of the land rights of indigenous peoples. Indigenous ownership is recognized through the definition of indigenous lands and of mechanisms for extending indigenous lands through purchases subsidized by the Indigenous Lands and Waters Fund. The Government indicates that a total of 16,580 hectares of land benefiting 2,267 families were purchased between 2010 and 2015. In addition, in 2015, purchases made in relation to lands that were the subject of legal dispute corresponded to a surface area of 8,200 hectares benefiting 700 families. While noting this information and referring to its previous comments, the Committee requests the Government to continue taking steps to ensure the smooth functioning of the mechanism for the regularization of lands and the related dispute settlement procedure in order to guarantee effective protection of indigenous peoples’ rights of ownership and possession over the lands which they traditionally occupy, in accordance with Articles 13 and 14 of the Convention.

Article 15. Natural resources. In its previous comments, the Committee observed that projects or activities likely to have an environmental impact which must be submitted to the SEIA do not include mining operations at the post-survey exploration stage or the exploitation stage. It also noted the Government’s indication that mining concessions are awarded through judicial decisions. The Committee underlined the need to amend the national legislation so as to ensure that indigenous peoples are consulted before any programme for the exploration or exploitation of natural resources on their lands is undertaken or authorized and are able to participate in the benefits deriving from the exploitation of those resources. The Government indicates that it has directed its efforts towards incorporating in the SEIA the consultations provided for in Article 6 of the Convention. The objective is that when an environmental impact study relates to projects entailing the exploration or exploitation of resources on indigenous lands and the possibility has been established that the indigenous peoples may be directly affected, consultations must be held in accordance with Article 6 of the Convention. The Government explains that the other rights referred to by Article 15(2) of the Convention, in view of the nature of the subject, are not covered by the SEIA Regulations, and so do not come within the competence of the environmental institutions. Nevertheless, the Ministry of Energy is holding consultations with indigenous peoples with regard to concessions for the exploitation of geothermal energy. The Committee requests the Government once again to take the necessary measures (including legislative measures) to ensure that indigenous peoples are consulted before any mining exploration or exploitation activities are undertaken on the lands that they traditionally occupy. The Committee also requests the Government to provide examples enabling an examination of the manner in which the SEIA Regulations ensure that indigenous peoples are consulted before any programme for the exploration or exploitation of natural resources on their lands is undertaken or authorized, in accordance with Article 15 of the Convention. The Committee further requests the Government to indicate the manner in which the participation of indigenous peoples in the benefits deriving from the abovementioned projects is ensured.

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