Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations of the Single Central Organization of Workers of Chile (CUT-Chile), received on 13 September 2018. The Committee requests the Government to send its comments in this regard.

Article 6 of the Convention. Prior consultation. Indigenous constituent consultation process. The Committee notes the information provided by the Government in its report on the prior consultation processes conducted with indigenous peoples from 2009 to 2017, with regard to legislative measures and development projects, and that 85 out of 127 consultation processes have been finalized. The Government also includes a list of 45 official decisions from state administrative bodies establishing that the processes of consultation with indigenous peoples are not applicable.

The Committee notes the “Final report on systematization of the indigenous constituent consultation process” published in 2017 by the Ministry of Social Development. The report describes the process of consultation with indigenous peoples throughout the country with a view to enshrining the constitutional recognition of such peoples and their rights, under the supervision of an advisory and monitoring committee comprising organizations in the United Nations system and indigenous national councillors of the National Corporation for Indigenous Development (CONADI). The consultations took place between August 2016 and January 2017 with the Mapuche, Rapa Nui, Aymara, Quechua, Atacameño (Likan Antai), Diaguita, Colla, Kawashkar and Yagán peoples through convened meetings, self-convened meetings and individual participation, with the universities responsible for implementation. A total of 17,016 persons were consulted. The Committee notes the “Record of the outcomes of the national dialogue on the process of consultation concerning the constitutional recognition of the rights of indigenous peoples” signed on 21 October 2017 by representatives of the indigenous peoples, the Ministry of Development on behalf of the Government, and the UN Resident Coordinator in Chile in the capacity of guarantor and facilitator. The above-mentioned record contains the measures on which full agreement exists, including: (i) recognition of the pre-existence of indigenous peoples inhabiting the territory; (ii) recognition of the right of indigenous peoples to preserve, strengthen and develop their history, identity, culture, languages, institutions and traditions; (iii) the duty of the State to preserve the cultural diversity of the country; (iv) recognition and protection of the cultural and linguistic rights of indigenous peoples, their cultural, tangible and intangible heritage; and (v) reaffirmation of the principle of equality and non-discrimination on the basis of indigenous origin. The Committee notes that the “Bill amending the Fundamental Charter for enshrining the recognition of indigenous peoples, their culture and traditions, and ensuring their political participation and representation” (Official Gazette No. 11939-07) – which is based on the agreements achieved through the indigenous constituent process – was submitted to the Chamber of Deputies of Chile on 19 July 2018.

The Committee notes with interest the consultation process held with indigenous peoples in the country and the submission to the Chamber of Deputies of the “Bill amending the Fundamental Charter for enshrining the recognition of indigenous peoples, their culture and traditions, and ensuring their political participation and representation”. The Committee welcomes the efforts of the Government in this regard, which contribute towards strengthening the trust of the indigenous peoples. The Committee requests the Government to provide information on progress made regarding the process of constitutional recognition of indigenous peoples and their rights, further to the agreements enshrined in the “Record of the outcomes of the national dialogue on the process of consultation concerning the constitutional recognition of the rights of indigenous peoples” signed on 21 October 2017. The Committee also requests the Government to supply information on the manner in which the concerns expressed by indigenous peoples have been addressed in cases where it was decided that prior consultation processes were not applicable.

Articles 6 and 7(3). Consultations in the context of the Environmental Impact Assessment System. In its previous comments, the Committee noted the General Environment Act (No. 19.300 of 1994), which established the Environmental Impact Assessment System (SEIA), and also Decree No. 40 of 2013 issuing the SEIA Regulations. The Committee recalls that Act No. 19.300 establishes a procedure of informed participation for communities in the appraisal process for environmental impact studies; and that Decree No. 40 provided that projects going through the SEIA that directly affect indigenous groups must be subjected to a process of good-faith consultation. The Committee notes section 85 of Decree No. 40, which provides that the consultation process must be formulated and implemented by the Environmental Evaluation Service, taking account of appropriate mechanisms reflecting the particular socio-cultural characteristics of each people and their representative institutions so that communities have the possibility of influencing the environmental evaluation process.

The Committee recalls that, further to the recommendation of the tripartite committee appointed to examine the representation made by the First Inter-Enterprise Trade Union of Mapucho Bakers of Santiago, adopted by the Governing Body (GB.326/INS/15/5), it asked the Government to provide information showing that, in projects going through the SEIA which are likely to affect indigenous peoples directly, there had been compliance with Articles 6 and 7 and, where applicable, with Articles 15 and 16 of the Convention. In reply to this request, the Government includes detailed information in its report on projects going through the SEIA which have been the subject of consultations with indigenous communities on the basis of stages agreed upon between them and the Environmental Evaluation Service. The first project (Embalse Chironta), located in the Arica and Parinacota region, was given a favourable assessment in September 2014 after consultations with the Aymaras de Challapo, Chapisca and Molinos Inti Marka indigenous communities and also with the Molinos and Chapisca Indigenous Associations. The Government indicates that these communities were likely to be affected directly by the project owing to the transit of vehicles on an unpaved road, which would generate high levels of noise and emissions. As a result of the consultations, 24 agreements were reached on the use of mitigation measures, including an agreement with the Municipal Labour Information Office in the municipality of Arica regarding training in skills that might be needed during the work concerned. The second project (“New 2 x 220 kV line Encuentro–Lagunas”), located in the Antofagasta and Tarapacá regions, was given a favourable assessment in March 2016 after being the subject of consultations with the Aymara de Quillagua indigenous community. The Government indicates that this community was likely to be affected directly since the project was to go ahead on archaeological sites where the community held cultural events. As a result of the consultations, 13 agreements were reached relating to mitigation measures to protect the archaeological component, as well as compensation measures, including the recovery of trails, the inclusion of local workers, and the construction and improvement of the community infrastructure and the Quillagua Tourist Information Centre.

The Committee requests the Government to continue providing information on the measures taken to give effect to the agreements reached with the communities consulted regarding the Embalse Chironta and “New 2 x 220 kV line Encuentro–Lagunas” projects, and to give effect to other agreements with indigenous communities which have been consulted through the Environmental Evaluation Service regarding development projects which affect them directly.

Articles 7(3), 15 and 16. Reform of the legislation on environmental impact assessment. In its previous comments, the Committee noted the setting up of an advisory board to evaluate and propose reforms to the SEIA and expressed the hope that the Government, on the occasion of the reform of the SEIA, would ensure the effectiveness of the mechanisms for the consultation and participation of indigenous peoples, as provided for by Articles 6, 7, 15 and 16 of the Convention. The Government indicates that the Chamber of Deputies has started its examination of a Bill to modernize the SEIA presented by the President of the Republic through Communiqué No. 062-366 of 27 July 2018. The objectives of the Bill include the incorporation of prior public participation in relation to projects going through the SEIA system with the aim of creating an early dialogue process between the community concerned and the project sponsor, on the understanding that the appropriate time for launching the dialogue is before the assessment of the project. Criteria for the early public participation stage include: the provision of accurate, timely and complete information; the creation of forums for interaction so that communities can influence aspects of the project; and good faith and respect for human rights. This stage would conclude with the establishment of terms of reference as a basis for the preparation and presentation of the respective environmental impact assessment. The Committee notes the Government’s indication in this respect that no consultations have been held with indigenous peoples on this matter, regardless of the fact that once these possible reforms take the shape of a legislative bill, they must be the subject of consultations since they entail legislative amendments relating to the consultation of indigenous peoples.

The Committee emphasizes that the Supreme Court issued a report on 5 September 2018 concerning the Bill modernizing the SEIA (No. 20-2018), in which it states that the early public participation process constitutes an opportunity for those directly concerned or affected by the project or activity to inform themselves in a full and timely manner, especially regarding the economic and social benefits and the possible environmental externalities. The Supreme Court indicates the need to clarify whether the early public participation process includes the prior consultation of indigenous peoples when the project or activity directly affects one or more indigenous groups. According to the Court, if this is the case, the SEIA should establish a good-faith consultation process. In this respect, the Court, invoking Article 7(3) of the Convention, emphasizes that the early participation of indigenous communities through prior consultation would enable them to discover and understand the cultural and social impact that investment initiatives can have on these communities. The Committee observes that the Court refers to the final report of the Presidential Advisory Board for the reform of the SEIA, which indicates that there is a need to analyse the indigenous consultation processes which occur in the context of the SEIA, since these are facing questions and criticisms regarding procedures, expected results and associated time frames. Taking account of the objective and scope of the proposed amendments, the Committee trusts that the Government will take the necessary steps to ensure that consultations are held with indigenous peoples during the process to reform Act No. 19.300 establishing the SEIA, and also regarding possible amendments to the SEIA Regulations, in so far as they directly affect their rights. The Committee requests the Government to ensure that any legislative proposal relating to environmental impact assessments: (i) complies with Articles 6 and 15 of the Convention with regard to consultations with indigenous peoples on projects for the exploration or exploitation of existing resources on lands traditionally occupied by the aforementioned peoples; (ii) ensures the cooperation of the peoples concerned in the assessment of the social, spiritual, cultural and environmental impact that the development activities can have on these peoples, in accordance with Article 7 of the Convention; and (iii) addresses situations envisaged in Article 16(2)–(5) of the Convention regarding projects that involve the removal of the peoples concerned from the lands they traditionally occupy. In this regard, the Committee recalls that the Convention establishes that the removal and relocation of indigenous peoples from their lands constitutes an exceptional measure, and shall only take place with their free and informed consent.

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