Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the observations of the General Confederation of Labour (CGT), of 29 October 2010, on pending issues, and particularly on the need to establish appropriate consultation machinery, and the observations of the Confederation of Workers of Argentina (CTA), of 31 August 2011, which refer to pending matters, and particularly the use of violence for the removal of indigenous communities from the lands which they traditionally occupy. The Committee requests the Government to provide its comments on these matters.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO). In previous comments, the Committee noted the report adopted in November 2008 by the Governing Body (GB.303/19/7) on the representation made under article 24 of the ILO Constitution by the Educational Workers’ Union of Río Negro (UNTER), in which the Governing Body examined matters relating to consultation at the national level, as well as the issues of consultation, participation and the performance of traditional activities by indigenous peoples in the province of Río Negro and requested the Government to:

• (a) continue making efforts to strengthen the Council for Indigenous Participation (CPI) and ensure that, when elections of indigenous representatives are held in all the provinces, all the indigenous communities and all institutions considered by the communities themselves to be representative are invited to participate;
• (b) carry out consultations with regard to the Bills referred to in paragraphs 12 and 64 of the report and to establish mechanisms to ensure that consultations with indigenous peoples take place whenever legislative or administrative measures that may directly affect them are being considered. The consultations should be carried out sufficiently early so as to be effective and meaningful;
• (c) ensure that, in implementing Act No. 26160, all communities and truly representative institutions of the indigenous peoples likely to be directly affected are consulted and able to participate;
• (d) ensure that, in accordance with the principle of concurrent powers of national and provincial authorities, effective consultation and participation mechanisms are established in the Province of Río Negro involving all the truly representative organizations of the indigenous peoples, as set out in paragraphs 75, 76 and 80 of the report of the Governing Body, in particular in the process of implementing national Act No. 26160;
• (e) in implementing Act No. 26160, to make substantial efforts, in consultation with and with the participation of the indigenous peoples of the Province of Río Negro to clarify: (1) the difficulties in the procedures for regularizing land, with a view to developing a rapid and accessible procedure that meets the requirements of Article 14(3) of the Convention; (2) the question of the levy for land use referred to in paragraph 92 of the report of the Governing Body; (3) any problems in obtaining legal personality; and (4) the issue of dispersed communities and their land rights; and
• (f) make efforts to ensure that measures are adopted in the Province of Río Negro, including interim measures, with the participation of the indigenous peoples involved, to ensure that indigenous stockbreeders have easy access to marks and signs certificates and carry on their activities in conditions of equality, and to strengthen that activity in accordance with the terms of Article 23 of the Convention.

The Committee notes that, according to the CTA and the CGT, effect has not been given to the recommendations made by the tripartite committee.

The Committee notes that, with regard to the strengthening of consultation and participation machinery, the Government indicates that, with a view to strengthening the CPI and the participation of all indigenous communities and institutions considered representative by those communities, the communities included in the National Register of Indigenous Communities (RENACI) and in provincial registers were convened. According to the Government, communities which are not registered can also participate with the consent of the majority of the other communities. With a view to ensuring the transparency of the process, the National Institute for Indigenous Affairs (INAI) participates in community assemblies, and the processes of indigenous peoples for the election of their representatives are respected. Moreover, the representatives are provided with a sum of money so that they can travel in their communities and national meetings are organized in which the representatives of all indigenous peoples participate with a view to reaching agreements and setting priorities. Workshops and seminars have also been held.

With regard to the legislative bills that are under examination and consultation with indigenous peoples on that subject, the Committee notes that the Government referred, in the context of the representation, to a series of bills under examination, namely: the Bill amending the Mining Code with regard to the participation of indigenous communities; the Bill declaring the indigenous community property and emergency issue; the Bill establishing the intellectual property rights of indigenous peoples; the Bill to regulate relations between the authorities of the national and federal judicial systems and the authorities of indigenous peoples; the Bill establishing a mechanism for the consultation of indigenous peoples; the Bill establishing penal mediation as an alternative to resolving disputes arising from the penal system; the Indigenous Communities Property Regime: Emergency and Regulation, repealing sections 2, 4, 7, 11 and 12 of Act No. 23302; and the Indigenous Communities Regime. In this respect, the Committee notes that, according to the Government, the Bills have not been examined, with the exception of those resulting in the approval of Act No. 26160, of 2006, declaring indigenous community property an emergency issue and therefore suspending temporarily the implementation of judicial decisions, procedural or administrative acts regarding the eviction or removal from lands traditionally occupied by indigenous communities registered in RENACI. The Act is also mandating INAI to carry out the technical and legal identification of the status of the land occupied by indigenous communities as to its ownership or possession. Decree Regulations No. 1122/07 and INAI Resolution No. 587/07 on the National Programme for the Identification of the Lands of Indigenous Communities were also enacted. The Government indicated that the approval of these pieces of legislation followed processes in which the representatives of CPI participated. With regard to the implementation of Act No. 26160, the Committee notes the Government’s indication that indigenous communities participated in the drafting and implementation of the National Programme for the Identification of the Lands of Indigenous Communities referred to above.

With reference to the establishment of effective consultation and participation machinery in the province of Río Negro with all the truly representative organizations of indigenous peoples, the Government indicates that the Mapuche and Mapuche-Tehuelche peoples are organized through the Coordinating Committee of the Mapuche People’s Parliament, which assesses and proposes candidates for the positions of advisers and presidents of the Council for the Development of Indigenous Communities (CODECI). The CODECI is a co management body of the provincial State and the Mapuche people, which participates in the Río Negro Provincial Programme, particularly in the implementation of the Programme for the Identification of the Lands of Indigenous Communities (RETECI).

With regard to the identification of lands, in consultation with the indigenous peoples of the Province of Río Negro, and the difficulties involved in the certification of land, the Committee notes the indication by the Government that an agreement was concluded between the INAI and the CODECI and a budget allocated with a view to the implementation of the Provincial Land Identification Programme, with the identification of 126 communities. The Programme includes technical assistants of indigenous origin. The Government also refers to the various activities undertaken in the province with indigenous participation in 2009.

In relation to the measures adopted so that indigenous stockbreeders can have easy access to marks and signs certificates and exercise their activity under conditions of equality, the Committee notes the Government’s indication that the INAI signed an agreement with the Province of Río Negro (Agreement No. 156/01) under the terms of which indigenous communities are registered as legal entities with the Directorate of Legal Personality and the Council for the Development of Indigenous Communities in the province. With reference to marks and signs, the Government indicates that the absence of regularization of land tenure of certain members of indigenous communities makes it difficult to grant them ownership of marks and signs, resulting in difficulties in the circulation of livestock for sale.

Taking into account the information supplied, the Committee requests the Government to:

• (i) continue taking the necessary measures to ensure that indigenous peoples are consulted in an appropriate manner whenever it is planned to adopt administrative or legislative measures that may affect them directly;
• (ii) indicate whether the various Bills referred to above are still under examination or have been shelved and indicate any developments regarding those still under examination;
• (iii) provide information on the impact in practice of the implementation of Act No. 26160 and the National Programme for the Identification of the Lands of Indigenous Communities, and particularly on the number of communities having benefited, and the land regularized;
• (iv) continue providing information on the progress achieved in the process of land identification undertaken with the participation of the indigenous communities concerned and the difficulties encountered in that process, including the issues of levies for land use and dispersed communities and their land rights;
• (v) indicate the number of indigenous communities registered, the number of pending registrations and any cases in which registration has been denied and the reasons for such denial; and
• (vi) take the necessary steps for the adoption of measures, including transitional measures, in the Province of Río Negro, with the participation of the peoples concerned, so that indigenous stockbreeders can have access easily to marks and signs certificates and carry on their activities under conditions of equality, and to strengthen that activity in accordance with Article 23 of the Convention.

Eviction of communities. The Committee notes the observations of the CTA dated 31 August 2010 and 31 August 2011 and of the Association of Health Professionals of Salta (APSADES) dated 12 June 2009 concerning the eviction, sometimes with the use of violence, of indigenous communities, without taking into account Act No. 26160, which had suspended such evictions. The Committee notes that the CTA refers to evictions principally in Tucumán, Neuquén, Formosa and Chaco. In particular, it denounces the violent eviction of the Chuschagasta community in Tucumán on 12 October 2009, resulting in the death of a member of the council of elders and injuries to various other representatives, the eviction of the India Quilmes community, the eviction of the Paichil Antriao community (in respect of which the Inter-American Commission on Human Rights (IACHR) requested precautionary measures on 6 April 2011 (MC 269/08) and the violent eviction of the Toba-Qom de Navogoh La Primavera community in the Province of Formosa on 23 November 2010, during which two members of the community died. The Committee observes that the Government replied to these issues only in general terms in its report.

The Committee also notes that APSADES forwards a report issued by the National Aboriginal Pastoral Team (ENDEPA), which also refers to the eviction of communities from the lands they occupy and delays in certifying land tenure. ENDEPA also refers to a series of specific cases of violations of the rights of indigenous peoples, and particularly: the implementation of contaminating mining exploitation activities without consulting the indigenous peoples who are directly affected in the Province of Chaco; the assignment of ancestral lands as the property of a university in the Province of Misiones; mining exploitation in the Province of Jujuy and the Province of Chubut without prior consultation with the indigenous communities affected; and allegations of discrimination against members of indigenous communities. ENDEPA adds that, following the complaints made concerning all these allegations, the INAI initiated administrative procedure No. INAI-50395-2008. In this regard, the Committee notes that the Government confines itself in its reply to summarizing the allegations of ENDEPA, without giving a precise reply. Emphasizing the gravity of the allegations, the Committee requests the Government to:

• (i) take the necessary measures to conduct investigations into the allegations of the violent eviction of the communities referred to and the death of members of the Chuschagasta indigenous community in Tucumán and the Toba-Qom de Navogh indigenous community in Formosa;
• (ii) provide information on the progress made in the procedures relating to file No. INAI-50395-2008, referred to by ENDEPA, concerning the complaints related to the abovementioned acts and the eviction of the Paichil Antriao community; and
• (iii) take measures, in consultation with the indigenous peoples affected, with a view to finding an appropriate solution to each of the disputes referred to, in accordance with Act No. 26160, which provides for the suspension of evictions.

Articles 2 and 33. Coordinated and systematic policy. In its previous comments, the Committee requested the Government to provide detailed information on the procedures for the election of indigenous representatives to the Coordination Council envisaged in Act No. 23302/85, and to indicate whether such procedures ensure that the indigenous peoples are able to elect their representatives without any interference. In this respect, the Committee notes the Government’s indication that INAI Resolution No. 41/08 determines the procedures for the designation of indigenous representatives to the Coordination Council through regional community assemblies in which the highest community authorities and the representatives of each people participate. These representatives are elected by each community in accordance with their own procedures. The INAI provides support for these procedures, and the representatives’ designations have to be ratified by means of a decree issued by the national executive power. With regard to the designation of members of the CPI, the Committee notes that, according to the CTA, they are elected by the provinces, instead of being elected by the communities, their functions are limited and they lack real participation in the decisions of the INAI. In this respect, the Committee notes the Government’s indication that the CPI is composed of 100 representatives of over 30 peoples. The Committee notes that, according to the Government, the composition of CPI is due to be renewed in 2011 with the election of two representatives for each community of the same people in each province, to serve a three-year mandate. The Committee requests the Government to continue providing information on the activities of the Coordination Council, and particularly on the election of the representatives of indigenous peoples and the intervals between the meetings of the Council and its agenda. The Committee asks the Government to indicate the limits to the exercise of its powers when issuing the Decree of ratification of the election of the members of CPI. The Committee requests the Government to attach copies of the reports of the meetings of the Council. The Committee also asks the Government to indicate how indigenous participation councils take part in the decision-making process of INAI. Furthermore, observing that the Government has not provided the requested information on the distribution of responsibilities and the coordination mechanisms established between the Coordination Council and the Advisory Council (envisaged in Act No. 23302/85), on the one hand, and the CPI (envisaged in Act No. 26160) on the other, the Committee reiterates its request to the Government in this regard.

Articles 6 and 7. Consultation and participation. The Committee notes that, with regard to the Plan of Action on Participation and Consultation drawn up in a seminar/workshop held in May 2007, the Government indicates that the Directorate for the Affirmation of Indigenous Rights has been established, and that the appointment to the post will be made upon the proposal of indigenous organizations (National Decree No. 702/201). The Government adds that progress is being made in regulating the right to participation and consultation, for which purpose the INAI will establish a legislative assessment and drafting commission together with indigenous organizations and the CPI. The Committee requests the Government to provide information on any progress made in regulating the right to participation and consultation, and requests the Government to take the necessary measures to ensure that such regulations are in conformity with the Convention.

Observations made by the Educational Workers’ Union of Río Negro (UNTER), dated 28 July 2008. The Committee notes that, in its observations, the UNTER refers to the following matters: the granting of hydrocarbon exploration and exploitation permits in the Province of Río Negro (the hydrocarbon-bearing fields of Neuqueu, Colorado del Ñirihuau and Cañadón Asfalto-Meseta de Somuncurá); the establishment of protected natural areas in the Province of Río Negro without having held consultations with the Mapuche peoples inhabiting the area; and the failure to recognize the rights of the Mapuche communities and eviction from the lands they traditionally occupy (the Quintupuray and Lof Mariano Epulef communities). The Committee regrets that the Government has not provided its comments on this subject, and requests it to do so without further delay.

Article 14. Lands. The Committee previously requested the Government to provide information on the progress achieved and the difficulties encountered in the process of regularization of the lands traditionally occupied by indigenous peoples, in accordance with Act No. 26160 declaring the ownership and possession of traditionally occupied lands an emergency issue. In this respect, the Committee notes the Government’s indication that: (1) the National Programme for the Identification of the Lands of Indigenous Communities (RETECI) has concluded seven specific agreements in various provinces, with a view to carrying out the technical and legal identification of the respective lands. In April 2010, the identification process was completed in the provinces of Córdoba, Entre Ríos, Tierra del Fuego, La Pampa and San Juan, and is awaiting implementation in the provinces of Mendoza, Neuquén, Misiones, San Luis, Formosa, Corrientes and La Rioja. The Government indicates that the implementation of the Programme has given rise to renewed disputes between the communities, on the one hand, and non-indigenous families, economic and local interests, on the other, which has resulted in reticence by provincial bodies in giving effect to it; (2) 13,460,000 hectares are to be identified, of which 4 million hectares have been registered or identified as indigenous lands prior to Act No. 26160, while 2,955,838 hectares have been identified as indigenous lands since the adoption of the Act; (3) Act No. 26554 extended both the time limits envisaged in Act No. 26160 for land identification and the period of suspension of evictions until November 2013, and increased the amount of the special fund to support the demarcation of lands by US$30 million; (4) the Programme for the Regularization and Adjudication of the Lands of the Aboriginal Population of Jujuy (PRATPAJ) has regularized approximately 1,312,645 hectares. Referring to the provincial report, the Government provides detailed information on the manner in which those lands were distributed in the communities in the departments of Cochinoca, Yavi, Susques, Tilcara, Humahuaca and Tumbaya, as well as information on pending procedures; and (5) Presidential Decree No. 700/2010 was issued ordering the establishment of a Legislative Analysis and Drafting Commission composed of representatives of the provincial governments, indigenous peoples and the CPI. The above Commission has prepared a preliminary draft Bill for the recognition of indigenous community possession and property. The Committee requests the Government to continue providing information on:

• (i) the land regularization processes that have been carried out and are pending, the surface area covered and the beneficiary communities, as well as the difficulties encountered; and
• (ii) the progress made in the preparation and adoption of legislation to recognize indigenous community possession and ownership.

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