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

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

Article 1 of the Convention. Scope of application. The Committee notes the information provided by the Government in its report on the number of persons belonging to indigenous peoples. According to data from the National Socio-Economic Characterization Survey (CASEN 2015), the total number of persons who identify themselves as being members of an indigenous people is 1,585,680, distributed among nine peoples (Aymara, Rapa Nui or Pascuenses, Quechua, Mapuche, Atacameño (Likán-Antai), Colla, Kawashkar or Alacalufes, Yámana or Yagám, and Diaguita), amounting to 9.03 per cent of the total population of the country. The Government also indicates that, according to the preliminary results of the CENSO 2017, the population which considers itself to be indigenous totals 2,185,792 persons (12.8 per cent of the population). The Committee requests the Government to continue providing up-to-date information on the number of persons belonging to indigenous peoples, indicating the peoples concerned and their geographical distribution, taking into account that these data are an important tool for formulating and targeting measures that implement the Convention. The Committee once again requests the Government to provide information on the measures taken to ensure that the Changa, Chono, Huilche and Pehuenche peoples enjoy the protection afforded by the Convention.

Articles 2 and 33. Coordinated and systematic action. In its previous comments, the Committee noted the bills presented by the Government to the Chamber of Deputies providing for the establishment of a national indigenous peoples council responsible for representing the interests, needs and rights of the indigenous peoples as a whole, and also for the establishment of a ministry of indigenous peoples and the formulation of an indigenous national policy. The Committee observes that the Government has not provided any information on the status of these bills. The Committee recalls that the Convention refers to the active participation of indigenous peoples in administrative and legislative decision-making with regard to subjects that concern them, including the submission of initiatives and proposals for measures, programmes and activities that contribute to their development. The Committee once again requests the Government to provide information on the actions that have been taken within the competent administrative bodies to promote the effective participation of indigenous peoples in developing coordinated and systematic action to protect their rights and guarantee respect for their integrity. The Committee also requests the Government to indicate whether the legislative initiative to establish a national indigenous peoples council and a ministry of indigenous peoples, or any other body responsible for dealing with indigenous affairs, is still in progress, indicating the manner in which indigenous peoples are consulted and participate therein.

Article 3. Human rights. In its previous comments, the Committee noted the Government’s pledge not to apply anti-terrorist legislation to members of indigenous peoples for acts of social protest and also noted the preparation of a bill to align legal texts on terrorist offences with international human rights legislation. The Committee encouraged the Government to continue its efforts and asked it to provide information on any complaint of abuses or violence against indigenous peoples by the security forces.

The Committee observes that the Government has not supplied any information on the progress of the reform of anti-terrorist legislation or on any complaints of abuses or violence against indigenous peoples by the security forces. The Committee notes that the United Nations Committee against Torture (CAT), in its concluding observations of August 2018 on Chile, expressed concern at the inappropriate application of the Anti-Terrorism Act against Mapuche activists charged with damaging private property, and also at the excessive use of force by the security forces against members of the Mapuche people in the context of evictions and raids in their communities (CAT/C/CHL/CO/6, paragraphs 18 and 22). The Committee requests the Government to provide information on the measures taken or envisaged to prevent the use of force or coercion in violation of the human rights and fundamental freedoms of indigenous peoples. The Committee also requests the Government to report on any developments in relation to the current status of the reform of the anti-terrorist legislation.

Article 7. Development. The Committee notes the Government’s indication that the “Indigenous environmental protection and management fund” continues to operate, under the auspices of the Ministry of the Environment in cooperation with the National Indigenous Development Corporation (CONADI). The objective of this fund is to promote and support projects devised by indigenous communities or associations which contribute towards improving the environmental conditions of the locations they inhabit. From 2015 to 2017, a total of 71 projects received support from the fund. The Government also reports on the implementation of the Chile Indígena (indigenous Chile) programme, with the support of the CONADI National Council, which seeks to contribute to improving the quality of life of indigenous population groups, promoting their development and reinforcing their identity. The programme operates through the setting up of territorial units in which communities with common family roots or originating from the same community interact, with a view to drawing up a territorial plan of priorities through the participation of members of the community and the assignment of funds to all territorial units for the implementation of their plans. Between 2015 and 2018, the programme benefited communities in the Metropolitana, Araucanía, Los Rios and Los Lagos regions through the financing of capacity-building projects in organizational reinforcement, the indigenous economy and the role of women. The Committee requests the Government to continue providing information on the measures taken to promote initiatives for the development of indigenous peoples, both through CONADI and through other administrative bodies, and on their impact on the economic, social and cultural environment.

Article 14. Lands. In its previous comments, the Committee noted the mechanisms adopted by the Government to ensure the effective protection of the rights of indigenous peoples over their traditional lands. The Committee notes that, according to information supplied by CONADI and forwarded by the Government, between August 2016 and May 2018 a total of 22,408.15 hectares were granted to 98 indigenous communities in the regions of Bio Bio, Araucanía, Los Rios and Los Lagos. In addition, a total of 27.33 hectares considered to be sites of cultural significance were granted to 21 communities in Araucanía. The Committee welcomes the advances made in the processes of land restitution to indigenous communities and encourages the Government to continue taking steps to ensure that indigenous peoples enjoy effective protection of the rights of ownership and possession over lands that they traditionally occupy through the processes of demarcation and titling. The Committee also requests the Government to provide information on the procedures that exist to settle any disputes that arise in the demarcation and titling processes, and also to deal with land claims submitted by the indigenous peoples concerned.

Article 15. Natural resources. In its previous comments, the Committee observed that projects or activities likely to have an environmental impact which must go through the Environmental Impact Assessment System (SEIA) did not include mining operations at the post-survey exploration stage or the exploitation stage, and so it asked the Government to take the necessary 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 Government indicates that Decree No. 40 of 2013, issuing implementing regulations for the General Environment Act (No. 19.300 of 1994), imposes the obligation to submit mining development projects to the SEIA, including for coal, oil and gas, covering surveys, exploitation, processing plants, the disposal of residues and tailings, and also the industrial extraction of aggregates, peat or clay. In this regard, the Government refers to the Paguanta mining survey project in the Tarapacá region, which received a favourable assessment in October 2014 after being the subject of a consultation process with the Aymara indigenous community concerning the impact of transit restrictions on the Cultane access route to which the project gave rise. The consultations concluded with a final memorandum of understanding signed in January 2014.

The Committee notes the adoption of Special Resolution No. 1152 of August 2015 establishing the Seaboard Unit (UBC) at the CONADI National Directorate in order to achieve better implementation of Act No. 20.249 of 2008 establishing indigenous marine coastal areas (ECMPOs). The objective of this Act is to safeguard the customary use of such areas, to maintain the traditions and use of natural resources by communities with links to coastal areas, and thereby ensure the conservation of natural resources and the welfare of the communities concerned. The UBC contributes to the preparation of reports on customary use and the implementation of consultation processes with indigenous communities regarding the establishment of requested ECMPOs. The UBC also participates in the committee which reviews plans for the administration of ECMPOs, verifying that the agreements derived from the consultation processes are respected. The Government indicates that approval was given to the establishment of ECMPOs covering a total of 140,146.46 hectares between 2015 and 2018, with 18 consultation processes having been held in that respect.

The Committee requests the Government to provide information on the manner in which the cooperation of indigenous communities is ensured in the evaluation of studies regarding the social, spiritual, cultural and environmental impact of mining exploration and exploitation projects other than those involving coal, oil and gas in the aforementioned communities, giving examples of consultation processes in this regard. In view of the fact that, under the Basic Constitutional Act on mining concessions (No. 18.097 of 1982), mining concessions include permits for exploration as well as exploitation of mineral resources, the Committee once again requests the Government to take the necessary measures (including legislative measures) to ensure that indigenous peoples are consulted before concessions are granted for mining exploration or exploitation on lands that they traditionally occupy. In this regard, and also referring to its observation, the Committee expresses the hope that such measures will be adopted as part of the process to amend the legislation relating to the SEIA. The Committee also requests the Government to provide information on the consultations processes held with indigenous communities regarding the establishment of ECMPOs, including information on agreements concluded on the basis of these processes.

Article 25. Health. The Committee notes the information sent by the Government regarding the process of participation and consultation with regard to the regulations establishing the right of indigenous peoples to receive culturally relevant health care. The Committee notes that, as a result of the consultations, a national agreement was signed on 29 October 2016 between the indigenous peoples and the Ministry of Health. The agreement contains the undertaking made by the Ministry of Health to address the requests constituting the health agenda formulated by the indigenous peoples during the consultation process, including, inter alia, the strengthening of the “Indigenous peoples special health programme” and the recognition of indigenous health systems. The Government indicates that, further to the consultation process, the “Indigenous peoples plan” was adopted in March 2017, the objective of which is to help reduce unequal treatment in the health situation of indigenous peoples through the participatory formulation of health plans which recognize cultural diversity, promote complementarity among medical systems, and provide appropriate health services which meet specific epidemiological needs, rights and profiles. The Committee notes that, according to the March 2017 document describing the components of the above-mentioned plan, there are significant inequalities in access to health-care services in areas inhabited by indigenous peoples, as well as high mortality rates in all age groups.

The Committee requests the Government to provide information on the adoption of the regulations relating to the right of persons belonging to indigenous peoples to receive culturally relevant health care and, if applicable, on the measures taken in the context of such regulations. The Committee also requests the Government to include information on the measures taken in the context of the “Indigenous peoples plan” and their impact, including up-to-date information on the number and location of health centres for indigenous peoples.

Articles 23 and 28. Education. In its previous comments, the Committee noted the adoption of the “Bilingual intercultural education programme” and other measures to preserve and restore traditional indigenous languages, and asked the Government to provide information on progress made in the implementation of education programmes for indigenous peoples. In this regard, the Government indicates that in April 2018 the indigenous peoples national consultation process was launched, regarding the content of the curricula concerning the language and culture of indigenous peoples in basic education. The consultations include organizations, associations, communities and individuals belonging to indigenous peoples recognized by the Indigenous Peoples Act (No. 19.253 of 1993). The Committee requests the Government to provide information on the consultations held with indigenous peoples regarding the content of the curricula concerning the language and culture of indigenous peoples in basic education. The Committee also requests the Government to send detailed information on the manner in which the “Bilingual intercultural education programme” is implemented, and also up-to-date statistics on its impact.

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

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.

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

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.

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

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.

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

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.]

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

The Committee notes the Government’s detailed report received in September 2013. In reply to the observations from the International Organisation of Employers (IOE), the Government indicates that the ratification of the Convention presents the challenge of reconciling the application of indigenous peoples’ right to be consulted with the productive development of the country, reducing the recourse to litigation with respect to investment projects. The contributions from the Confederation of Production and Commerce (CPC), the Mining Council, and the Chilean Wood Corporation (CORMA) express the hope that both the draft legislation on consultation of indigenous peoples and the Environmental Assessment Service Regulations (adopted by means of Decree No. 40 published in August 2013) will become tools for enhancing the legal certainty of investment projects in the country. Among other things, CORMA and the Mining Council underline the need for establishing a clear definition of representativeness of indigenous peoples in order to implement consultations. In this regard, the Committee notes the analysis sent in September 2013 by the Trade Union Federation of Araucanía relating to appeals for protection filed with the Appeals Court in the Ninth Region (the region with the largest indigenous population in the country), which are primarily concerned with the consultation and participation established by the terms of the Convention. According to the aforementioned Federation, the rulings analysed show that recourse to litigation is a tool that paralyses investment or trade projects for the duration of the non-innovation order pending the outcome of the proceedings in the Supreme Court. The suspension of the project may last at least a year and cause investors to have misgivings. The Committee invites the Government, when preparing its next report, to continue communicating with the representative employers’ and workers’ organizations and consult indigenous peoples’ organizations in the country on the measures taken to give effect to the Convention (Parts VII and VIII of the report form). The Government is also invited to include court decisions and documents on pending litigation covering matters relating to the application of the Convention (Part V of the report form).

Consultation. New legislation. The Government indicates that, between March 2011 and July 2013, dialogue mechanisms were established with representatives of the indigenous peoples with a view to achieving consensus on new legislation concerning consultation and participation. The Committee notes the detailed information on the operation of the Roundtable on Consensus in which the United Nations and the National Human Rights Institute (INDH) were observers. The Government drew the Roundtable’s attention to the illustrative report of the INDH “observation mission” of August 2013 concerning the process, content and decisions of the Roundtable on Consensus. The Committee on Consensus held meetings between March and July 2013 and its work culminated in the signature of a protocol setting forth the agreements reached on 17 sections of the draft. The Government indicates that no agreement was reached on the definitions of “directly affected” or on the measures requiring consultation. The Committee notes that the President of the Republic signed Supreme Decree No. 66 on 15 November 2013, thereby approving the regulation “on the indigenous consultation procedure” pursuant to Article 6(1)(a) and (2) of the Convention. In response to the request made by indigenous organizations, Supreme Decree No. 124 of 2009 will be abrogated once the new regulation enters into force. The Committee requests the Government to provide information to the Office on the entry into force of the new regulation on consultation. The Committee requests the Government to provide information in its next report that will enable it to examine the manner in which the new legislative text ensures the effective consultation of indigenous peoples in all measures which may affect them directly and gives full effect to the corresponding provisions of Articles 6, 15 and 16 of the Convention.

Article 7. Participation. The Government indicates that it intends to submit proposals to Congress for the establishment of an indigenous peoples’ council that represents indigenous peoples at the national level and performs an advisory role in the formulation of policies that affect the peoples concerned. In the dialogue between the indigenous peoples and the Government aimed at reaching consensus on new legislation relating to consultation, it was decided not to adopt regulations on participation. The Committee recalls that the Convention refers to active participation by indigenous peoples, which includes submitting initiatives and proposals for measures, programmes and activities that shape their development and enable them to decide their own priorities [see the Handbook for ILO Tripartite Constituents on the Convention, published by the ILO in 2013, page 19]. The Committee invites the Government to include in its next report information on how it has been ensured that indigenous peoples participate effectively in decisions that may affect them directly and that full effect is given to the corresponding provisions of Articles 6, 7, 15 and 16 of the Convention.

Lands. The Government states that, through the 13th land tender in 2012, more than 3,300 hectares of land were purchased and handed over in 2012–13 to 605 families who met the criteria relating to vulnerability and social risk. The Government indicates that each handover of land is accompanied by an agreement providing productive and technical assistance. The Committee recalls that in its previous comments it had observed difficulties in the regularization of property rights claimed by indigenous peoples. In view of the persistence of a situation that is not in compliance with the Convention, the Committee reiterates its request to the Government to provide detailed information in its next report on the compliance with the Convention of the procedures for the regularization of land titles and the settlement of disputes. The Committee hopes to be able to examine information showing that account has been taken of the concerns expressed by trade unions and organizations of indigenous peoples in the comments made in 2010, and that the right to land ownership and possession set out in Articles 13 and 14 of the Convention is recognized for indigenous peoples.

In a direct request, the Committee requests the Government to include information in its next report on other matters related to the self-identification of indigenous peoples, the consultation procedures which have been established in the regulations concerning the Environmental Impact Assessment System (SEIA), natural resources and progress achieved in health and education.

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

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

With reference to the comments made in 2010, the Committee notes the replies provided by the Government in September and November 2011, and the additional information provided in September, October and November 2012. Furthermore, the Committee notes the content of the observations sent by the Single Central Organization of Workers (CUT), the National Confederation of Artisanal Fishers of Chile (CONAPACH) and the National Confederation of Unions of Bakery Workers (CONAPAN), which were forwarded to the Government in September, October and November 2010. CONAPACH and CONAPAN provided a detailed alternative report from the Aymara people. The CUT forwarded a detailed alternative report prepared in the Araucanía region, as well as documentation prepared by the Coordinating Unit of Mapuche Organizations and Communities from the Araucanía region and the Pelón Xaru Mapuche Nation Peoples Culture Centre. The CUT forwarded specific information from the Kawésqar indigenous community located in Puerto Edén, the Rapa Nui people and representatives of urban Mapuche organizations. In the report received in September 2011, the Government indicated that it had replied to the substantive issues raised by the indigenous organizations.

Communication from the International Organisation of Employers (IOE). The Committee notes that the IOE has submitted observations in August 2012 on the application in law and practice of Articles 6, 7, 15 and 16 of the Convention concerning the requirement of consultation. In this regard, the IOE raises the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus of indigenous and tribal peoples, and the importance for the Committee to be aware of the consequences of the issue in relation to legal security, financial costs and certainty of both public and private investment. The IOE refers to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also states that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to include in its next report any comments that it deems appropriate on the observations made by the IOE.

Article 3 of the Convention. Human rights and fundamental freedoms. With reference to the serious dispute between the Government and the Mapuche peoples referred to in its 2010 direct request, the Committee notes with interest that Act No. 20477, adopted on 30 December 2010, modified the jurisdiction of military tribunals. Civilians and minors may in no event be subject to the jurisdiction of military tribunals as defendants, although they retain the right to assistance to take action in military tribunals as victims or initiators of penal action. The Government indicates in its report of September 2011 that cases against Mapuche individuals for terrorist crimes have been reclassified in order to be considered as ordinary crimes. Furthermore, detailed information was provided on some of the proceedings against Mapuche individuals. The Committee requests the Government to provide updated information in its next report on the cases that are being tried in which there are still Mapuche defendants. Taking into account the concern expressed by indigenous organizations, the Committee invites the Government to indicate the measures adopted to prevent the use of force or coercion in violation of the human rights and fundamental freedoms of the peoples concerned.

Article 1. Self-identification. The Committee notes that in the CUT’s comments two communities were identified which indicated that they are not taken into consideration in the national legislation: a coastal community in the North, known as the Changa people; and another coastal and fishing community in the Lakes and Aysén regions, known as the Chono people. The Huilliche and Pehuenche communities have also called for recognition as distinct peoples. The CUT forwarded a document by an ancestral Mapuche Huilliche organization in the Rios and Lakes regions. The Committee also notes the documentation prepared by the General Council of Huilliche Chiefs from Chiloé, forwarded by CONAPAN, which describes itself as an ancestral organization representing the historical continuity of former caciques. The General Council represents around 5,000 families organized into communities, divided into five communes in the province of Chiloé (the Lakes region). The General Council calls for them to be granted legal recognition so as to be able to ensure the application of the provisions of the Convention in relation to consultation and participation, land, health and education. The Committee invites the Government to indicate the measures adopted so that all the groups of the national population referred to in the communications received from indigenous organizations are protected by measures to give effect to the provisions of Articles 6 and 7 (consultation and participation), 14 (land), 25 (health), and 26 and 27 (education), of the Convention.

Articles 2 and 33. Coordinated and systematic action with the participation of indigenous peoples. New State institutions for indigenous peoples. The Government indicates that in the context of the dialogue process initiated in September 2010, the President of the Republic received a report in June 2011 on the progress made in the process which involved over 1,800 persons and that 49 dialogue forums were established. According to the information provided by the Government, the indigenous representatives expressed concern with regard to representativity, access to basic services and connectivity, development, education, culture and the regularization of land rights. In November 2011, the Government indicated that it was proposed to hold discussions on the new institutions. The stages of “the consultations on consultation”, the consultation for the drafting of the regulation of the right to consultation, were determined in the framework of the National Council of the National Indigenous Development Corporation (CONADI). The Government had proposed to continue developing the new institutional system, replacing CONADI by an Indigenous Development Agency and establishing a new indigenous representation body, the Indigenous Peoples’ Council. The Committee invites the Government to provide information in its next report on the outcome of the consultations on indigenous institutions and the manner in which indigenous peoples’ concerns and priorities were taken into account. The Committee requests the Government to provide precise information on the manner in which the effective participation of indigenous peoples is ensured in the institutions administering programmes affecting them, as required by Article 33 of the Convention.

Articles 6 and 7. Consultation and participation. New legislation. The Government indicates that it took into account the recommendations contained in the general observation made by the Committee of Experts in 2010 on the obligation of consultation when planning the consultations on indigenous institutions. The Committee also notes the exchanges with the Office on the manner of ensuring that the consultations amount to authentic dialogue so that the indigenous peoples can influence their outcome. The Government included in its reports documentation explaining the consultation process, which is also available on the website of the CONADI. In its report received in September 2011, the Government conveys the concern of a group of indigenous leaders who criticize the fact that various highly complex matters are subject to consultations at the same time within a period that they consider inadequate. Furthermore, criticisms were made in the Senate and Chamber of Deputies of the fact that the consultation process appears to be based on Supreme Decree No. 124 of 2009, and not on the Convention. In November 2011, the Government reiterated its intention to repeal Supreme Decree No. 124 of September 2009, which established consultation and participation machinery, and replace it by a new text agreed upon with the representative institutions of indigenous peoples. The CUT recalled that the adoption of Supreme Decree No. 124 was opposed by the Mapuche organizations on the grounds that it was in violation of the essential content of the Convention. The alternative report prepared by the Aymara people also rejected Supreme Decree No. 124. The Committee notes the concerns expressed by the CONAPACH that Supreme Decree No. 124 establishes a mechanism intended to gather the views of indigenous peoples and not to allow dialogue in good faith intended to achieve the consent of those affected by the proposed measures. In the same way as the other indigenous organizations, the alternative report of the Aymara people emphasizes that Supreme Decree No. 124 excludes certain key public bodies from, and restricts the scope of consultations, as it does not promote a process of dialogue in which indigenous peoples can really exercise influence. The CUT also emphasizes the exclusion of certain State bodies from the obligation of consultation and calls for all investment projects that may affect indigenous rights, whether or not in indigenous lands, to be subject to consultation. In September 2012, the Government forwarded its proposal for “legislation on indigenous consultation and participation”, with a view to developing provisions that enjoy consensus to replace Supreme Decree No. 124. The proposed text lays down the principles and a consultation procedure in order to give effect to Article 6(1)(a) and (2) of the Convention, and the Committee notes that it refers to the resettlement of indigenous communities and the significant deterioration of natural resources on which indigenous communities depend. In the reports received in September and October 2012, the Government listed 18 consultations held since March 2010, with five consultation processes being conducted until August 2012 and six planned in the near future. A major national meeting of indigenous representatives has been convened in Santiago in November–December 2012 to review the work carried out by each of the peoples and agree upon a common proposal with the Government. The Committee notes that the Government’s proposal is being discussed in three indigenous languages (Mapuzungun – the Mapuche people, Aymaran and Rapa Nui). The Committee invites the Government to include indications in its next report on the outcome of the efforts made for the adoption of legislation supported by consensus to replace Supreme Decree No. 124. The Committee hopes that the new text will ensure the effective participation of indigenous peoples in decisions which may affect them directly and will give full effect to the corresponding provisions of Articles 6, 7, 15 and 16 of the Convention.

Article 7. Participation. Process of development. In reply to its 2010 comments, the Government indicates that the regional indigenous forums are fundamental bodies for dialogue and participation. The Government indicated that in regions in which indigenous development areas (ADIs) exist, the ADI participation forums should also fulfil the role of regional forums so as not to create parallel institutions. The CUT indicates that the regional indigenous forums have been criticized by indigenous organizations due to the lack of a decision-making body for policies intended for local indigenous peoples. The forums do not have a budget and on many occasions have been dependent on the convocational capacity of the regional authority on which they are dependent, and no regular evaluation is carried out of their activities. Certain forums are not operational. With regard to indigenous development areas, the CUT endorses the criticisms by various indigenous peoples concerning the lack of coordination among public institutions as a basis for developing special policies for such territories. In accordance with the concerns expressed by the CUT, the ADIs practically have not functioned. The CONAPACH expresses its concern at the institutional barriers which limit the political participation of indigenous peoples. It regrets the lack of political will to promote the participation of indigenous peoples in the elected State bodies in which decisions are taken, in the absence of special measures to promote the participation of indigenous peoples or the removal of the institutional obstacles identified in national law and practice in relation to elections and political parties. The Committee invites the Government to include detailed information in its next report on the impact of the consultations that are being held in guaranteeing the participation of indigenous peoples in the formulation, application and evaluation of plans and programmes which may affect them directly. Please include information on the budgetary resources available to the State and the regions to ensure the participation of indigenous peoples in development programmes and for all the other measures provided for in Article 7.

Environmental impact studies. The Committee noted in its direct request in 2010 that the participation by citizens envisaged in Act No. 19300 of March 1994 and its implementing regulations published in December 2002 does not establish a specific requirement for consultation of indigenous peoples that ensures, in accordance with Article 7(3) of the Convention, that studies to assess the social, spiritual, cultural and environmental impact of development activities are carried out in cooperation with indigenous peoples. In the reply received in September 2011, the Government indicated that Act No. 19300 had been amended substantially by Act No. 20417, which entered into force in January 2010. The Committee notes that Act No. 20417 established the Ministry of the Environment, the Environmental Assessment Service and the Environmental Supervisory Service. The Committee observes that the indigenous peoples, in the same way as the Aymara in their alternative report, indicated that sectoral legislation offers less protection than the Convention. In this respect, the Committee notes the rulings of the Supreme Court forwarded by the Government concerning the appeals for environmental protection lodged by indigenous organizations. The CONAPACH also provides decisions resulting from legal action taken by indigenous communities with the support of various NGOs and containing rulings invalidating decisions by State bodies on the grounds that consultations had not been held in accordance with the Convention. The alternative report of the Aymara people refers to other court decisions setting aside appeals for the protection of rights without ruling on the scope of the right to consultation established in the Convention, particularly in relation to studies affecting the province of Parinacota. In October 2012, the Government provided the final report on the process of indigenous consultation on the Regulations on the Environmental Impact Assessment System (SEIA) and the guidelines on the procedures for citizens’ participation and support for the assessment of significant deterioration affecting original peoples. A Ministerial Sustainability Council approved, on 28 May 2012, the draft regulations of the SEIA. The Government also stated that the provisions of the new Regulations provide for “a good faith consultation process” and the possibility, in specific circumstances, for indigenous peoples to be able to contribute to the process of environmental assessment. Furthermore, on 21 November 2012, the Government transmitted to the Office a copy of the SEIA Regulations sent to the Office of the Comptroller General of the Republic. The Committee also notes that certain indigenous organizations lodged an appeal for the protection of their rights on 27 June 2012 with the Court of Appeal of Santiago against the Ministerial Sustainability Council in relation to its decision to approve the Regulations of the SEIA, alleging the failure to hold consultations and the inadequacy of the proposed text in terms of the Convention. The Committee invites the Government to provide information in its next report on the outcome of the appeal for the protection of the rights of certain indigenous organizations lodged against the Regulations of the SEIA. The Committee hopes that the text of the regulations that ensure effect is given to the requirements of consultation, participation and cooperation with indigenous peoples set out in Articles 6 and 7 of the Convention will be provided with the next report. In the event that an environmental impact study involves the prospection or exploitation of resources in indigenous lands and/or the resettlement of indigenous communities, the Committee invites the Government to indicate how compliance is ensured with all the provisions of Articles 15 and 16 of the Convention.

Lands. The Government indicates that the request for the regularization of land titles, greater flexibility in land boundaries and the purchase of land are among the principal matters raised in June 2011 in the context of the dialogue forum for a historical compromise. The Committee notes the activities undertaken by CONADI in the framework of Act No. 19253 and the legislation in force respecting land. In its alternative report, among other matters relating to Article 7 of the Convention, the Aymara people regrets that the proceedings in CONADI prevented the regularization of land titles in the province of Parinacota. Not all the persons concerned are able to regularize their land as they do not have the necessary financial resources. The CONAPACH also places emphasis on the case of the ancestral lands of the communities of the Atacameño, Aymara and Quechua peoples in the north of the country. The CUT recalls the work undertaken in 2003 in the framework of the Historical Truth and New Treatment Commission, which made recommendations concerning lands which were intended to strengthen the protection of indigenous lands, including the demarcation, titularization and protection of the lands over which ancestral indigenous ownership was demonstrated. With reference to Article 14(3) of the Convention, the Historical Truth and New Treatment Commission proposed the establishment of expeditious and low-cost legal procedures to resolve land claims by the persons or communities concerned. It expressed the conviction that the existence of efficient and effective machinery to process land claims would prevent claims being made through informal channels. The CONAPACH recalled the comments of the Committee of Experts concerning the obligation of countries which have ratified the Convention to establish machinery to recognize ownership based on traditional occupation. The CONAPACH also emphasized the conclusions and recommendations on lands and territorial rights of the UN Special Rapporteur submitted to the Human Rights Council following a working visit in April 2009. In his recommendations (paragraphs 53 and 54 of document A/HRC/12/34/Add.6, 5 October 2009), the UN Special Rapporteur referred to the Convention and supported the call for the establishment of effective machinery for the recognition of the land rights of indigenous peoples based on occupation and traditional or ancestral use. In view of the persistence of a situation that is not in compliance with the Convention, the Committee reiterates its request to the Government to report in detail on the compliance with the Convention of the procedures for the regularization of land title and the settlement of disputes. The Committee hopes to be able to examine information showing that account has been taken of the concerns expressed by trade unions and organizations of indigenous peoples in the comments made in 2010 and that the right to land ownership and possession set out in Articles 13 and 14 of the Convention is recognized for indigenous peoples.

Natural resources. In its comments in 2010, the Committee requested the Government to take the necessary measures to align the national legislation with the Convention so that indigenous peoples are consulted on investment projects likely to affect them directly and so that they can participate in the benefits deriving from the exploitation of mineral resources. The Committee observed previously that the Mining Code, the Act on geothermal energy concessions and the Water Code do not contain provisions on the consultation of indigenous peoples concerning investment projects that involve concessions for use or development. The alternative report prepared by the Aymara people indicates that when the Convention was ratified there was no adjustment of sectoral legislation. The alternative report provided by CONAPACH describes specific cases in which there appears to be a loss of rights by the indigenous Atacameña, Quechua and Aymara communities over water resources in the river Loa and other water and geothermal resources in the north of the country. In the same way as CONAPACH, CONAPAN also refers to the negative impact of mining projects in Diaguita Huascoaltino territory and the establishment of water rights in Mapuche territories by hydroelectric companies, without a determination of whether the interests of indigenous peoples have been prejudiced. In the reply received in September 2011, the Government referred to the development of the consultation process on indigenous institutions. The Committee notes the further indications provided by the Government in September and October 2012 on the attempts made to develop new institutions and to formulate Regulations on the SEIA. The Committee once again recalls the need to give full effect to Article 15 of the Convention, which sets out the conditions for prior consultation procedures and for participation in benefits by the peoples concerned. 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 for the prospection or exploitation of resources on their lands and are able to participate in the benefits deriving from the exploitation of natural resources. The Committee hopes to be able to examine specific information showing that the rights of indigenous peoples to natural resources have been safeguarded, as set out in the Convention.

Health. Education. Cross-border contacts and cooperation. The Committee notes the concern expressed by the Pelón Xaru Mapuche Nation Peoples Culture Centre on the need for greater government support so that machis (traditional Mapuche doctors) can carry out their work under optimal conditions. The urban Mapuche organizations also made calls for access to indigenous health and education. The alternative report of the Aymara people raises issues relating to the right to education and cross-border cooperation. In the same way as the other documentation provided by the CONAPAN, an ancestral Huilliche Mapuche organization emphasizes the need to ensure that persons exercising educational functions in the formal school context are trained in their indigenous communities. The Committee requests the Government to provide updated information in its report so that it can examine the manner in which progress has been made in the application of each of the provisions of Parts V, VI and VII of the Convention.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Legislation. The Committee notes Chile’s wide-ranging and comprehensive legislation on the rights of indigenous peoples. It notes in particular Indigenous Act No. 19523 of 1993, Presidential Resolution No. 5/2008 establishing indigenous units in each ministry and Decree No. 124 of 2009 regulating the consultation and participation of indigenous peoples. The Committee also notes Act No. 19300 of 1994 approving the general basis for the environment; Act No. 20249 of 2009 establishing the Marine Coastal Areas of Indigenous Peoples; the Mining Code, 1983; the Act on geothermal energy concessions, 2000; the Water Code, 1981; Act No. 18314 of 1984 which determines terrorist conduct and the applicable penal sanctions; and Act No. 20467 which amends Act No. 18314.

Article 3 of the Convention. Human rights and fundamental freedoms. The Committee notes that Act No. 18314, which defines terrorist acts and determines the applicable penal sanctions, has been applied to Mapuche peoples in the context of social protest action instead of the Penal Code, which is general in nature. The persons charged with such offences have been tried by military tribunals. The Committee notes that this situation has given rise to a serious dispute between the Government and the Mapuche peoples. The Committee notes with interest that on 1 October 2010 an agreement was reached between the Mapuche communities concerned and the Government in which the latter undertook to desist from accusations of terrorist acts and treat the actions concerned under ordinary penal law, and to continue to promote, in the National Congress, the amendments to the Code of Military Justice to enable civilians to be tried in the ordinary courts thereby avoiding a double trial, and to establish a forum for dialogue between the Government and the indigenous institutions in an attempt to reach agreement on other controversial issues. The Committee notes that, pursuant to this agreement, on 5 October 2010 Act No. 20467 was approved which amends the provisions of Act No. 18314 restricting the concept “terrorist” and eliminating the presumption of terrorism for setting fire to woodlands, crops, pastures, foothills and plantations. Furthermore, a bill has been drafted setting limits to the scope of application of military law and providing that no civilian may be subject to military jurisdiction. The bill has been approved but is awaiting review by the Constitutional Court, pursuant to a request of the Congress. Furthermore, on 24 September a process known as the “historic dialogue round-table forum” was launched in Temuco in which the national and regional authorities responsible for indigenous policy and more than 40 representatives of indigenous organizations and communities participate. The Committee requests the Government to continue to provide information on progress in this area.

Article 1. Self-identification. The Committee notes that, according to section 1(2) of Indigenous Act No. 19253 (the Indigenous Act), the State recognizes as the main indigenous ethnic groups the Mapuche, Aymara and Rapa Nui (Easter Island) peoples, the Atacameño, Quechua, Colla and Diaguita communities from the north of the country, the Kawashkar or Alacalufe and Yámana or Yagan communities of the channels of southern Chile. The Government indicates that the census of 2002 showed that, out of a population of 15,116,435 inhabitants, 692,192 (4.6 per cent) stated that they belong to one of the peoples covered by the census. The largest is the Mapuche people, accounting for 87 per cent of the total, second comes the Aymara people (7 per cent) and, in third place, the Atacameño people (3 per cent). The other ethnic groups account for 2.7 per cent. As to distribution by sex, there is a slight predominance of men over women. According to the National Socio-economic Characterization Survey (CASEN) of 2009, 1,188,340 persons identified themselves as members of indigenous peoples, the equivalent of 7 per cent of the population. There are currently 2,934 indigenous communities and 1,586 indigenous associations. Indigenous peoples are present throughout the country, especially in urban areas. Distribution according to ethnic group is heterogeneous. The Committee also notes that sections 2–3 of the Indigenous Act refer to the conditions to be met and the evidence to be provided in order to be considered indigenous and the means of registering this.

African descendants. The Committee notes there is currently a bill for the recognition of ethnic groups of African extraction. The Committee requests the Government to report on the stage the bill has reached in Parliament and to provide a copy of the legislation, once it has been adopted.

Articles 2 and 33. Coordinated and systematic action with the participation of indigenous peoples. The Committee notes the various legislative and administrative measures and the programmes adopted by the Government to develop coordinated and systematic action with a view to protecting the rights of the indigenous peoples and ensuring respect for their integrity. The Committee notes in particular: (1) the Indigenous Act establishing the National Corporation for Indigenous Development (CONADI), which is responsible for promoting, coordinating and carrying out government action on comprehensive development for indigenous persons and communities in the economic, social and cultural fields and promoting their participation in the life of the country; (2) Presidential Resolution No. 5 of 2008 establishing a strategy that involves the creation of an indigenous affairs unit in each ministry or local authority in order to examine and adapt the policies, programmes and plans of each ministry to incorporate indigenous membership; (3) Supreme Decree No. 101 of 7 June 2010 of the Ministry of Planning, establishing the Council of Ministers for Indigenous Affairs which is responsible for advising the President on the formulation and coordination of public policies relating to indigenous peoples; and (4) Supreme Decree No. 124 establishing a consultation mechanism enabling indigenous peoples to express their opinions on certain legislative and administrative measures, and a mechanism for participation enabling indigenous peoples to take part in the formulation, application and evaluation of plans and programmes for national and regional development that are likely to affect them directly. The Committee also notes that, according to the Government, consideration is being given to the possibility of amending the current system and dividing the duties currently performed by CONADI so that a multi-sectoral body has responsibility for devising policy, CONADI becomes an Indigenous Development Agency with executive and technical duties, and the representation of indigenous peoples is the responsibility of a council that is national in scope and plays an advisory role in policy formulation. The Committee further notes that Parliament is currently assessing a bill for the creation of a ministry of indigenous affairs. The Committee requests the Government to provide information on: (i) whether the bill to change the institutional structure and division of duties of CONADI, referred to by the Government in its report, has been, or will be the subject of consultation with the indigenous peoples, and how the Indigenous Advisory Council is to be run so as to ensure more effective participation by indigenous peoples; (ii) how this new institutional structure will impact on the indigenous affairs unit of each ministry established by Presidential Resolution No. 5 of 2008; and (iii) what stage the bill to create a ministry of indigenous affairs has reached in Parliament.

Articles 6 and 7. Consultation and participation. The Committee notes that section 34 of the Indigenous Act requires the state’s administrative services and the territorial organizations, when dealing with matters that impinge on, or relate to, indigenous issues, to hear and consider the opinions of the indigenous organizations recognized by the Act, and provides that, in communes of high indigenous density, indigenous peoples shall be represented in the participation bodies recognized for other intermediary groups. The Committee also notes that Decree No. 124 of 2009, implementing section 34 of the Indigenous Act issuing provisional regulations on consultation and participation, provides that indigenous peoples shall be consulted on the procedure for consultation and participation. The Committee notes with interest that, according to the Government, consultations with indigenous peoples are already taking place. The Government also indicates that a first round of meetings has already been held in the regional indigenous forums, with the participation of representatives of the ILO. With a view to assisting the Government in this process, the Committee draws its attention to its general observation of this year under the Convention. It also makes the following comments on some of the provisions of Decree No. 124, which could be taken into account in these consultations.

–      Sections 16 and 21 of the Decree appear to leave the decision to the administrative bodies to determine whether it is appropriate to start a consultation or participation process.

–      Section 7 of the Decree appears to limit consultation exclusively to indigenous lands or areas of indigenous development … or refers to a significant majority of specified or specifiable indigenous communities, associations and organizations.

–      Section 14 appears to limit consultations to the initial formulation of legislation.

–      Section 15 of the Decree appears to lack clarity in providing for exceptions to consultations as regards emergency cases or the necessities for the proper operation of the respective bodies.

The Committee requests the Government to provide information in its next report on the manner in which these points have been taken into account. It also asks the Government to continue to provide information on developments in the process of consultation with indigenous peoples currently being conducted with a view to drafting new regulations on consultation.

Article 7. Process of development. Participation. The Committee notes the information provided by the Government indicating that public management instruments have been developed so as to incorporate the needs and interests of indigenous organizations in government policies and programmes. The Committee notes in particular that the Indigenous Act contains a number of provisions to increase the participation of indigenous peoples, including: (1) section 34 provides that, in regions with a high density of indigenous peoples, these peoples shall be represented in the participation bodies recognized for other intermediary groups; and (2) provision is made for the participation of eight indigenous councillors in CONADI. CONADI in turn participates in all government programmes, measures and policies that concern indigenous peoples. The Committee further notes the Government’s indication concerning the institutionalization of the regional indigenous forums. The Committee requests the Government to: (i) specify the participation bodies referred to in section 34 of the Indigenous Act and the level of indigenous participation in these bodies; and (ii) provide more information on the proposal for institutionalizing the regional indigenous forums, which is to be submitted for discussion with the indigenous peoples. The Committee requests the Government to provide information on any developments in this respect.

Environmental impact studies. The Committee notes that Act No. 19300 approving the general basis for the environment created the Environmental Impact Evaluation System (SEIA) (Enabling Decree No. 95/2001) and provides that the State shall facilitate participation by citizens, allow access to information and promote education campaigns. The Committee observes that this mechanism provides for participation by citizens in general but does not establish a requirement for specific consultation of indigenous peoples that ensures, in accordance with Article 7(3) of the Convention, that studies to assess the social, spiritual, cultural and environmental impact of development activities are carried out in cooperation with the indigenous peoples. The Committee requests the Government to indicate the manner in which indigenous peoples are able to cooperate in the environmental impact studies, as provided for in Article 7(3) of the Convention.

Article 14. Lands. The Committee notes that the Indigenous Act: (1) recognizes the importance of land in the indigenous culture and provides that the State has a duty to protect it, ensure its proper use and ecological balance and seek to extend it (section 1); (2) establishes arrangements for land occupancy, which may be individual or collective (section 12); (3) creates the Indigenous Lands and Water Fund, administered by CONADI, with a view to extending indigenous lands by the grant of subsidies for land acquisition, the financing of mechanisms for the solution of land-related problems, and financing of the regularization of the acquisition of water rights (section 20); (4) also contains provisions on the division and inheritance of indigenous lands (sections 16–17); and (5) provides for a mechanism to deal with indigenous land claims (sections 55–59). Such issues are settled by properly qualified judges in a special and expedited procedure provided for in the Act. The Committee notes the Government’s statement that, according to CONADI, the surface area of indigenous lands is 1,161,074 hectares and that, between 1994 and 2010, it increased by 667,457 hectares. The Committee also notes that in its report the Government refers to the reactivation of the mechanisms for handing over lands to indigenous people in transparent and objective conditions. Every conveyance of land is to be accompanied by a “productive support agreement”. Furthermore, a process of dialogue with public and private stakeholders and with indigenous organizations has been launched in order to gather their views on other improvements to be made. The Committee requests the Government to provide information on the results of the dialogue process launched with a view to improving land conveyance mechanisms and the measures adopted subsequently, examples of the use of the dispute settlement procedure and information on lands that have been returned to indigenous peoples under this mechanism.

Article 15. Natural resources. The Committee notes the Government’s statement that various methods have been established for safeguarding indigenous rights to natural resources, including: (1) Indigenous Development Areas (sections 26 et seq. of the Indigenous Act); (2) special protection for water use rights for the Atacameño and Aymara peoples (section 64 of the Indigenous Act); and (3) establishment of the Marine Coastal Area of the Indigenous Peoples (Act No. 20249). The Committee also notes that, according to the Government, the State retains ownership of minerals and the subsoil and that there are exploitation rights for water which are not necessarily granted to the owner of the real estate where the water is located. The Committee notes that section 122 of the Mining Code provides that, where a mining concession involves applying for surface rights, the surface owners shall be compensated. The Committee also notes that section 5 of Decree No. 124 provides that “projects for investment in indigenous lands or areas of indigenous development … , where appropriate, shall be subject to the consultation or participation procedures envisaged in the rules governing the sector concerned, provided that the competent state administration body may, in addition, apply the consultation procedure laid down in [the Decree]”. The Committee notes that the Mining Code, the Act on geothermal energy concessions and the Water Code contain no provisions on the consultation of indigenous peoples concerning investment projects that involve concessions for use or development. The Committee reminds the Government in this context that, according to Article 15 of the Convention, the State has a duty to establish or maintain procedures through which they shall consult the peoples concerned with a view to ascertaining whether and to what degree their interests would be prejudiced. The Committee requests the Government to take the necessary steps to ensure that national legislation is aligned with the Convention so that indigenous peoples are consulted on investment projects likely to affect them directly, and can participate in the benefits deriving from the exploitation of mineral resources.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the detailed first report and the comprehensive appendices supplied by the Government, which show the special attention the Government pays to the application of the Convention. It also notes the comments of the National Confederation of Artisanal Fishers of Chile (CONAPACH), and the Single Central Organization (CUT) on behalf of the Coordination of Mapuche Organizations and Communities, Araucanía Region and the Mapuche Pelón Xaru Peoples’ Cultural Centre, both dated 30 August 2010, and the CUT’s comments of 1 October 2010. The Committee also notes the comments submitted by the National Confederation of Unions of Bakery Workers (CONAPAN) on 3 November 2010. The Committee will examine these communications at its next session, together with any observations the Government may wish to make thereon. The Committee requests the Government to respond to the comments of CONAPACH, the CUT and CONAPAN.

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