Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

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

1. The Committee notes the Government’s first report and its annexes. It regrets to note that the Government’s brief report only provides information on certain of the Articles of the Convention, and that it does not include the information necessary in a first report to enable the Committee to carry out a detailed examination, such as copies of any relevant national and provincial legislation. It also does not indicate the employers’ and workers’ organizations to which a copy of the report was communicated. In addition, it was received after the beginning of the Committee’s session, too late to be examined in detail this year.

2. The Committee notes that in September 2001, the Congress of Argentinian Workers (CTA) sent detailed observations on the application of the Convention, which were forwarded by the Office to the Government in October 2001. Noting that the Government’s report does not refer to any of the points raised by the CTA in its observations, the Committee requests the Government to provide information in this respect, and particularly on the points indicated below, which are examined in greater detail in a request addressed directly to the Government.

3. With reference to the legislation, the CTA indicates that the Constitution of 1994 introduced an amended regulation relating to indigenous peoples, recognizing the ethnic and cultural pre-existence of indigenous peoples and their collective ownership and possession of lands, among other provisions. Nevertheless, Act No. 23302 respecting indigenous policy and support for aboriginal communities dates from 1985 and the majority of the national and provincial laws on this subject are earlier than the constitutional reform and have not been brought into conformity with the Convention.

4. Article 1 of the Convention. With regard to the self-identification of indigenous peoples, the CTA points out that both the national and provincial legislation, as well as the census forms, contain criteria which are not in compliance with the Convention and it calls for indigenous peoples to be consulted for the formulation of questions which would guide the census of indigenous peoples.

5. The CTA alleges that numerous problems arise in the recognition of indigenous peoples, principally with regard to the granting of legal personality, due to long and complex procedures.

6. Articles 6, 7 and 15. The CTA alleges the absence of consultations with indigenous peoples through representative institutions in general, and particularly in connection with the exploration and exploitation of natural resources.

7. Land. The CTA states that the forms of ownership set out in the Civil Code, which is of Roman law origin, are inadequate for recognition of the ownership and possession of ancestral lands, and that the way they are applied results in indigenous peoples’ losing most of the claims they lodge for land rights.

8. The CTA also makes comments on other Articles of the Convention, which will be examined by the Committee together with the Government’s next report.

9. The Committee notes another communication from the CTA, received in November 2002, indicating among other information that a Bill has been submitted to the Senate establishing the Programme of Basic Social Infrastructure for Indigenous Communities. It requests the Government to provide a copy of this Bill and to indicate the consultations held in accordance with Article 6 of the Convention.

10. The Committee requests the Government to report in detail before 30 September 2003, so that its report can be examined during the Committee’s next session. It also hopes that the Government will communicate a copy of its report to employers’ and workers’ organizations.