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

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

The Committee notes the Government’s reports received in September 2015, February 2016 and September 2016. The Committee also notes the observations made in September 2016 by the Inter-Sectoral Association – Araucania Region (MGA), and also the Government’s reply, received on 8 November 2016. The MGA refers to the use of legal action in disputes relating to the processes for consultation of indigenous peoples, which results in the implementation of projects being delayed or blocked. It also considers that the direct application of provisions of the Convention that are not immediately enforceable by judicial or administrative bodies, which give a broad interpretation to the Convention, creates legal uncertainty and affects the rule of law. The Government indicates that the principle of the separation of powers supposes non-interference between the various authorities of the State, and so the executive authority may not interfere in the decisions of the judiciary. Recalling that Chile is a State party to the Vienna Convention on the Law of Treaties, the Government points out that different courts of law have invoked different provisions of Convention No. 169, especially those of a programmatic nature, principally as elements of conviction and interpretation in the various judicial decisions that they have handed down.

Article 1 of the Convention. Self-identification. The Committee notes the information provided by the Government on the Huilliche and Pehuenche communities and the Government’s indication that all indigenous peoples that still exist in the country are, without distinction, recognized as such. The Committee requests the Government to continue providing information on the specific measures taken to ensure that the Changa, Chono, Huilliche and Pehuenche peoples benefit from the protection afforded by the Convention.

Articles 2 and 33. Coordinated and systematic action with the participation of indigenous peoples. The Committee notes that, as part of the constituent process for the drawing up of a new Constitution, a “participatory indigenous constituent process” is being implemented during the second half of 2016 through the holding of participatory meetings with members of the nine indigenous peoples and their representative institutions. The process will culminate in the drawing up of an “indigenous constituent statute”, which will include the perspectives and proposals of the indigenous peoples. Once the draft Constitution has been drawn up, the provisions that may affect indigenous peoples directly will be submitted to a process of consultation with the indigenous peoples. The Committee requests the Government to provide information on the implementation of the “participatory indigenous constituent process”.

Article 3. Human rights and fundamental freedoms. With regard to the measures taken to avoid the use of force or coercion in violation of the human rights and fundamental freedoms of indigenous peoples, the Committee notes the Government’s indication that it has given an undertaking not to use the anti-terrorism act against members of the indigenous peoples for acts of social protest. Moreover, a bill has been submitted to bring the legislation on terrorist crimes into line with international human rights standards. The Committee also notes the information supplied on training activities in human rights implemented by the Chilean National Police and the Chilean Criminal Investigation Police. The Committee encourages the Government to continue its efforts and requests it to provide information on any complaints of abuse or violence directed against indigenous peoples by the security forces.

Articles 25, 26, 27 and 28. Health and education. The Committee notes the information provided on various initiatives, including those to strengthen indigenous participation in the area of health and to mainstream cultural components in health programmes. The Ministry of Health is also implementing a process of participation and consultation with indigenous peoples concerning proposed regulations to establish the right of indigenous persons to receive health care which takes into consideration cultural elements. As regards education policies, the Committee observes that the Government is continuing to take measures for the preservation and restoration of indigenous languages through the Bilingual Intercultural Education Programme (PEIB). The Government indicates that in 2015 the resources of the Ministry of Education for the indigenous language and culture sector increased by 44 per cent, which will make it possible, inter alia, to recruit 782 traditional educators, devise teaching materials, and provide initial training for teachers in bilingual intercultural education.

The Committee requests the Government to continue providing information on progress made in relation to the implementation of 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.