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

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

1. The Committee refers to its observation.

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 matters raised by the CTA in its observations, the Committee requests the Government to supply information on these matters and, in particular, on the points raised below.

3. With reference to the legislation, the CTA indicates that the Constitution of 1994 introduced a modified regulation respecting indigenous peoples which recognizes the ethnic and cultural pre-existence of indigenous peoples and collective land ownership and possession, among other provisions. However, Act No. 23302 respecting indigenous policy and support for aboriginal communities dates from 1985 and the majority of the national and provincial laws governing this issue were adopted prior to the constitutional reform and have not been brought into conformity with the Convention. The Committee hopes that the Government will examine its legislation with this purpose in mind taking into account the fact that, to do so, by virtue of Article 6 of the Convention, governments shall consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly. The Committee would be grateful if the Government would provide copies of the national and provincial legislation in force relating to indigenous peoples and if it would provide information on the manner in which it intends to bring its legislation into conformity with the Convention, with a copy of any draft legislation on this matter and an indication of the manner in which the indigenous peoples have been consulted.

4. Article 1 of the Convention. With regard to the self-identification of indigenous peoples, the CTA indicates that both the national and the provincial legislation, including the census forms, contain criteria which are not in compliance with the Convention and calls for the indigenous peoples to be consulted for the formulation of questions which would provide guidance for the indigenous census. Please indicate when it is planned to undertake the indigenous census and the manner in which the peoples concerned are participating in its preparation.

5. The CTA alleges that many problems arise in the recognition of indigenous peoples, principally related to obtaining legal personality as a result of long and complex procedures which amount to "more to the granting than the recognition of such personality". It alleges that these have serious repercussions, as the peoples concerned cannot defend their rights in the courts or before the public administration if they have not first acquired legal personality. Of the 850 indigenous communities, it states that only 15 per cent have been recognized by the National Institute of Indigenous Affairs (INAI) and, according to the CTA, no consultations were held with the communities themselves on the criteria for such recognition. Moreover, the legal personality granted at the provincial level has no value at the national level in the absence of special agreements, but only four of the 20 provinces in which indigenous peoples are located are reported to have concluded such agreements. Please indicate the manner in which the functions of the State and the provinces in relation to indigenous affairs are coordinated, and in particular the manner in which effect is given to article 75(17) in fine of the Constitution which, after determining the functions of the Congress with regard to recognition, lands and the management of resources in relation to indigenous affairs, provides that "the provinces may discharge these functions concurrently".

6. Articles 6, 7 and 15. The CTA alleges the absence of consultations with indigenous peoples through representative institutions in general, and particularly with regard to the exploration and exploitation of natural resources. According to these allegations, the State decides on the persons or institutions which are representative, and not the indigenous communities themselves. It adds that, despite the fact that the Constitution of 1994 sets out in article 75(17), referred to  above, that the functions of the Congress include ensuring the participation of indigenous peoples in the management of their natural resources and other interests which affect them, in the cases of the Binational Río Bermejo Project and the Paraguay Paraná Waterway Project, there was no participation by the indigenous peoples, but only by provincial and state institutions responsible for indigenous affairs. According to the CTA, it fears that the same may occur with the Río Pilcomayo Master Plan which will affect some one million persons and which is under preparation, and it calls for consultations to be held with the peoples concerned through their own institutions. The Committee hopes that the Government will adopt measures in accordance with these provisions of the Convention and that it will provide information on the situation and the measures adopted in relation to the three projects referred to here.

7. The Committee would also be grateful if the Government would provide information on the following cases referred by the CTA: (a) the lands of the Hoktei T’oi community, which is reported to have lodged an appeal for unconstitutional action with the Court of Justice of Salta against the deforestation of its land; (b) the case of Lhaka Honhat, lots 55 and 14, in the province of Salta, in which the community has lodged a complaint with the Inter-American Commission on Human Rights relating to the construction of a bridge between Argentina and Paraguay without consultations and without having undertaken a socio-environmental impact study; (c) the sale by Decree in the province of Formosa of 40,000 hectares of Chaco forests in public lands inhabited by indigenous and Creole communities, to the Australian enterprise LIAG for deforestation; and (d) the construction of the North Andean gas pipeline in lands which are claimed by the Collas and which is reported to have caused three fires in the Yungas forest in the province of Salta. Please also provide information on the measures adopted to give effect to Articles 6, 7 and 15 of the Convention in the cases mentioned here.

8. Land. The CTA states that the forms of ownership provided for in the Civil Code, which is of Roman law origin, are inadequate for the recognition of the possession and ownership of ancestral lands and that their application results in indigenous communities losing most of the claims that they make to land ownership. It refers in particular to the problem in the province of Rio Negro, in which Mapuche Indians live, and alleges that the Government of the province is promoting a review of the ownership of public lands, 75 per cent of which are reported to be indigenous, with a view to using them as a guarantee for international financial institutions in order to obtain new loans. It adds that a study carried out by the State with international assistance, the results of which were published in the study entitled "Patagonia XXI", affirms that the desertification of Patagonia requires the evacuation from rural areas of producers with flocks of fewer than 6,000 sheep and recommends the provision of incentives to encourage the migration of small farmers, which include Mapuche Indians. The Indigenous Adviser in Rio Negro (CAI) is opposed to the policy of the regularization of land ownership as proposed by the Government of Rio Negro. The CTA also alleges that there are cases in the province of irregular cartographic entries, the illegal granting of ownership rights, the illegal purchase of possession rights, unlawful transfers of property and possession rights acquired illegally and pressure to sell land at very low prices. Please provide information on the policy of regularizing land title in the various provinces, including Rio Negro, with an indication of the situation in law and practice. Please indicate in particular the measures adopted or envisaged to determine the lands traditionally occupied by the peoples concerned and to ensure effective protection for their rights of ownership, as well as the procedures used to resolve land claims.

9. The CTA also makes comments on other Articles of the Convention, which the Committee will examine together with the Government’s next report.