Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

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

1. The Committee notes the information supplied in the Government’s report. It also refers the Government to its observation on this Convention.

2. Article 1 of the Convention. Scope. The Committee notes that, according to the Government, the National Population and Housing Census of 2001 included an indigenous self-identification variable which will yield more accurate information as to number of indigenous persons in the country. The Committee requests the Government to provide the results of the census with its next report, together with information on any progress made in the preparation of a specific survey on indigenous peoples. It notes that the bill, to which it refers in its observation, requires an indigenous census to be carried out within two years, and requests the Government to keep it informed in this regard.

3. The Committee notes the Government’s statement that it finds that the observations submitted by the Congress of Argentine Workers (CTA) on 30 September 2002 do not meet the requirements for treatment as a representation under article 24 of the ILO Constitution. The Committee points out that those observations were submitted under articles 22 and 23 of the Constitution, and requests the Government to send any comments it deems appropriate on the matters raised by the CTA.

4. Indigenous identity. In its previous comments the Committee noted the CTA’s assertion that the peoples concerned are unable to defend their rights in the courts or before the public administration unless they are able to show that they have legal personality. The CTA further alleged that only 15 per cent of the 850 indigenous communities are recognized by the National Institute of Indigenous Affairs (INAI) and that no consultations were held with the communities themselves on the criteria for such recognition. Furthermore, legal personality granted by a province is not recognized at the national level unless there is a special agreement, and only four of the 20 provinces that have indigenous peoples have concluded such agreements. The Committee likewise noted that pursuant to the constitutional reform of 1994, a resolution was passed (No. 4811/96) establishing requirements for the registration of indigenous communities, the requirements have been simplified, and account is taken of self-identification as a fundamental right. The Committee takes notes of the information supplied by the Government in its report to the effect that in registering at national level the legal personality of indigenous communities, the latter’s customs and forms of organization are respected and that in the provinces agreements to this effect are concluded. The Committee requests the Government to provide information on the application of resolution No. 4811/96 in the various provinces, particularly in Neuquén and the provinces which have no agreement with the nation. Please also indicate how central authority and provincial authority in this matter are coordinated. Please provide information on the manner in which it is ensured that indigenous communities participate in, or are consulted on, the formulation of procedures for recognition of legal personality, at both national and provincial levels.

5. The Committee notes with interest the information supplied by the Government that in the province of Río Negro an agreement has been signed with the Mapuche community for recognition of the legal personality of the various communities. The Committee requests the Government to provide information in its next report on the number of indigenous communities that have acquired legal personality since the signing of the abovementioned agreement.

6. Article 2. Government measures. The Committee notes that the Constitution of the province of Jujuy requires the establishment of standards that will lead to the integration of indigenous peoples. The Committee reminds the Government that, without prejudice to the obligation to afford to members of indigenous communities the same opportunities as to the non-indigenous population, the objective of the Convention is to maintain the integrity of indigenous communities by establishing their right to set their own priorities.

7. Article 3. Human rights and fundamental freedoms. The Committee requests the Government to provide information on the status of the human rights and fundamental freedoms of the members of the Pilagá and Wichí communities in Lugones, El Quebracho and Las Lomitas in the province of Formosa, and on any complaints of breaches of their human rights and fundamental freedoms, together with details of any measures adopted or envisaged to ensure proper means of redress.

8. Article 4. Special measures of protection. The Committee notes with concern the information in a communication from the ADEP reporting suicides and alcohol problems among members of indigenous communities in the province of Jujuy caused by frustration at the lack of work and projects for young people. The Committee notes in this connection that in its report the Government supplies information on activities carried out under the "Indigenous Culture and Knowledge" programme for the prevention of alcoholism and other forms of addiction and the programme to prevent drug addiction and combat drug trafficking implemented by the INAI and the Programme Secretariat. The Committee would be grateful if the Government would provide information in its next report on progress made under these programmes and on the effective participation by representatives of the indigenous communities in the preparation, implementation and evaluation of the programmes.

9. The Committee requests the Government to provide information on the activities of the "National Programme to Support Humanitarian Action for Indigenous Peoples" (ANAHI).

10. Article 6. Consultation and participation. The Committee notes the content of the Alternative Report of the National Team for Pastoral Social Work and the Ecumenical Movement for Human Rights, which indicates that at the time of publication - July 2003 - there are no representatives of indigenous peoples in the INAI. The Committee requests the Government to provide information in its next report on the current structure of the INAI authorities, and particularly on the participation of representatives of indigenous peoples and the manner in which such representatives are elected. Please also provide information on the amounts assigned to the INAI in the budgets of the last few financial years.

11. The Committee requests the Government to provide information on activities carried out to apply the provisions of the Agreement of the Neuquén Institute for Indigenous Affairs; of the Chaco Institute for Indigenous Peoples; the Misiones Provincial Directorate for Guaraní Affairs; the Chubut Institute for Indigenous Communities; the Santa Fe Provincial Institute for Indigenous Peoples; the Salta Provincial Institute for Indigenous Peoples; the Formosa Institute for Indigenous Communities; and the Río Negro Council for the Development of Indigenous Communities.

12. The Committee requests the Government to provide details of the manner in which the indigenous communities are consulted and participate in actions and policies implemented in the province of Río Negro.

13. Article 7. Development policies. The Committee asks the Government to provide information on the manner in which indigenous communities are enabled to decide on their own priorities for development, as required by this Article. The Committee trusts that in its next report the Government will be able to give information on specific cases, indicating in particular the activities conducted under the "Ramón Lista Comprehensive Development Project"; the "Care for Indigenous Peoples Component" (CAPI) of the Programme of Care for Vulnerable Peoples; and the "Project for the Development of Indigenous Communities and the Protection of Biodiversity". The Government is also asked to provide information on the manner in which the indigenous communities concerned have participated in the formulation, implementation and evaluation of the activities conducted under the abovementioned projects, including activities to preserve and protect the environment.

14. The Committee again requests the Government to supply information on any progress made in the passage of the bill submitted to the Senate for the creation of the Programme of Basic Social Infrastructure for Indigenous Communities, indicating the manner in which the indigenous peoples were consulted in its preparation. The Committee would be grateful if the Government would provide a copy of the bill.

15. Articles 8, 9 and 10. Customs and customary law. The Committee notes the content of the Alternative Report of the National Team for Social Pastoral Work and the Ecumenical Movement for Human Rights, which states that the penal legislation does not deal with the indigenous peoples’ rights laid down in the abovementioned Articles. The Committee requests the Government to provide information on the application of these Articles of the Convention in law and in practice, including on the punishment of offences committed within the indigenous communities themselves.

16. Article 12. Access to legal proceedings. The Committee notes the information provided by the Association of Provincial Educators (ADEP) that in the provinces of Jujuy and Chaco, the lack of any courts near to or within reach of the main settlements of indigenous communities makes it difficult for these indigenous people to take legal action to defend their rights under the Convention. The Committee trusts that the Government will be in a position to provide information in its next report on the adoption of measures to give effect to this Article.

17. Article 14. Ownership and possession of lands. In its previous comments the Committee referred to the CTA’s allegation 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. The Committee further notes that, according to the Alternative Report of the National Team for Social Pastoral Work and the Ecumenical Movement for Human Rights, apart from a few exceptions there are no procedures in operation at either national or provincial level to recognize lands occupied or used by indigenous communities, and that where such procedures do exist, the State has not given the communities political and strategic support.

18. The CTA referred to problems in the province of Río Negro, where there are Mapuche indigenous, and alleged that the provincial government was promoting a review of the ownership of public lands, 75 per cent of which are indigenous, with a view to using them as surety in applying to international financial institutions for new loans. It further stated that the Indigenous Adviser (CAI) of Río Negro was opposed to the policy of regularization of land ownership as proposed by the Río Negro government, that there are cases in the province of irregular cartographic entries, unlawful granting of ownership rights, unlawful purchase of possession rights, unlawful transfers of property and possession of rights acquired illegally, and pressure to sell land at very low prices. In the absence of any comments by the Government on this matter, the Committee reiterates its request for information on the policy of regularizing land title in this province, with an indication of the situation in law and practice.

19. The Committee requests the Government to provide information on the manner in which effect is given to section 1 of Act No. 2727 of the province of Misiones, which requires implementation of plans and actions allowing access to land ownership and the promotion of productive activities by the Guaraní communities in this province.

20. The Committee also notes that, according to the Alternative Report of the National Team for Social Pastoral Work and the Ecumenical Movement for Human Rights, in the province of Chaco, 50 per cent of the indigenous communities have either not acquired or not fully acquired title to ownership of the lands they inhabit or use and that those most affected are the Mocoví, followed by the Tobá and Wichí. The Committee requests the Government to provide information on the measures taken pursuant to the commitments assumed under Decree No. 757 of 1995 regarding the award of lands to indigenous communities in this province.

21. The Committee notes the adoption by the province of Mendoza of Act No. 6920 recognizing the ethnic and cultural pre-existence of the Huarpe Milcayac and ordering expropriation of the lands occupied by this people. It also notes that the State Prosecutor impugned the Act as unconstitutional. The Committee requests the Government to provide information on any ruling given on this matter.

22. The Committee requests the Government to provide information on progress achieved by the national programmes for the regularization and award of lands for the indigenous population of the provinces of Chubut and Jujuy.

23. Dispute settlement. The Committee notes the information supplied by the Government to the effect that a Mediation Committee has been created to settle disputes about territorial borders, and that it has an indigenous mediator. The Committee requests the Government to provide information on the measures adopted or envisaged by the provinces that have indigenous communities to inform them about the dispute settlement procedures together with information on the manner in which the indigenous mediator was chosen. The Committee also requests information on action taken by the Mediation Committee or by other mechanisms to settle disputes affecting the Felipin, Cayulef, Marafil, Caupan and Paineo communities in the province of Neuquen; the Mariano Epulef Mapuche community in the province of Chubut; the Mbya Guaranícommunity in the province of Misiones; and the Miraflores Qom indigenous community in the province of Chaco.

24. Article 15. Natural resources. In its previous comments the Committee referred to comments by the CTA alleging an absence of consultations with the indigenous peoples through representative institutions in general, and particularly in connection with natural resource exploration and use. According to the abovementioned organization, it is the Government, not the indigenous communities themselves, that determines the representative persons or institutions. According to the Alternative Report of the National Team for Social Pastoral Work and the Ecumenical Movement for Human Rights, the legislation on exploitation of natural resources does not allow for indigenous peoples to participate and be consulted in their own right, but only in the same capacity as any landowner under the Civil Code. In this connection, the Committee notes the information from the ADEP regarding the situation in the province of Jujuy to the effect that the Mining Code and the provincial legislation make no provision either for consultation of, or joint management and participation by, indigenous peoples regarding natural resources in the lands they traditionally occupy. The ADEP also mentions that a number of indigenous communities have difficulty in obtaining energy and fuel, for example for cooking and heating in student canteens, although there are gas supply lines in the province.

25. The Committee notes the information supplied by the Government to the effect that as regards raw materials, there is as yet no legislation on the participation of indigenous communities. The Committee requests the Government to report on any progress made in ensuring consultation of representatives of the indigenous communities particularly in the drafting of legislation for this purpose.

26. The Committee once again requests the Government to provide information on the measures taken to apply Articles 6, 7 and 15 of the Convention in the following cases: (a) the lands of the Hoktei T’oi community, which has reportedly lodged a complaint for unconstitutional action with the Salta Court of Justice 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 against the construction of a bridge between Argentina and Paraguay without consultation and without a socio-environmental impact study having been undertaken; (c) the sale by decree in the province of Formosa of 40,000 hectares of Chaco forest in public lands inhabited by Indian and native communities, to the Australian enterprise LIAG for deforestation; and (d) the construction of the North Andean gas pipeline in lands claimed by the Collas and which has allegedly caused three fires in the Yungas forest in the province of Salta. Lastly, the Government is also asked to provide information on the preparation and implementation of the Pilcomayo River Master Plan, the Binational Bermejo River project, and the Paraná-Paraguay waterway project.

27. The Committee requests the Government to supply information on the disputes about the use of natural resources involving the Millaqueo, Cheuquel, Painemil, Kaxipayiñ and Millain Currical Mapuche communities in the province of Neuquen. Please also keep the Committee informed of rulings regarding the complaint filed under the Constitution to the Administrative Tribunal of the province of Jujuy by members of the Liviara and Orosmayo communities alleging injury caused by the mining of alluvial gold in the Orosmayo River basin.

28. The Committee requests the Government to provide information on the manner in which indigenous communities share in the benefits of tourism based on their cultural heritage.

29. Article 16. Transfer and relocation. The Committee notes the information supplied in the Government’s report to the effect that there has been no displacement of indigenous communities. It also notes that the procedure for displacement requires the informed and freely given consent of the communities affected. The Committee notes a bill, to which it refers in its observation with the comment that the dislodging and displacement of indigenous peoples is sufficiently serious to warrant emergency legislation. Please provide further information on this matter.

30. Article 19. Agrarian programmes. The Committee notes the information in the Government’s report that there is an Agricultural Social Plan, which is nationwide in scope. The Committee trusts that the Government will provide information in its next report on the assistance afforded to the various indigenous communities through this Plan.

31. Article 20. Conditions of employment. The Committee notes the information supplied by the Government to the effect that no specific legislation has been adopted on this subject. The Committee also notes the information supplied by the ADEP, which draws attention to the absence of labour inspectors in mining, the tobacco industry and agriculture in the province of Jujuy, particularly in the La Puna region. The Committee requests the Government to provide information on employment conditions for the members of the indigenous communities working in the mining sector in the province of Jujuy, indicating the number of inspections carried out and the number of infringements reported, if any, stating the reasons and the action taken.

32. The Committee requests the Government to report on the campaigns, carried out in various parts of the country in which there is a large concentration of indigenous labour, to inform workers of their labour rights and the channels available for asserting them, and on the possibility of adopting special safeguard measures, with participation by the peoples concerned.

33. The Committee notes that pursuant to section 25(ñ), (o) and (p) of Act No. 3258 on the indigenous communities of the province of Chaco, the Chaco Institute for Indigenous Communities (IDACH) is responsible for monitoring compliance with labour law, providing indigenous people with legal assistance in filing labour claims avoiding discriminatory practices and disseminating information on labour standards among indigenous workers and their employers. The Committee would be grateful if in its next report the Government would provide information on the measures adopted or envisaged to give effect to these provisions.

34. Articles 21 and 22. Vocational training. The Committee notes the information in the communication from the ADEP to the effect that an alarming number of families are unemployed as a result of mine closures in the province of Jujuy. Please indicate the measures taken to promote, with the participation of the indigenous communities, vocational training programmes in the affected areas allowing such families to be reintegrated in the labour market.

35. Article 23. Rural handicrafts and industries. The Committee notes that, according to the ADEP, there are no programmes in Jujuy to encourage the growing of products that were traditionally part of the indigenous communities’ diet, such as the different varieties of potato, quinoa, maize, chalona, chilcal and chorqui. It also notes that in the rare assistance plans under way, the communities are given dried and canned foods, pasta and other products that are alien to their traditional diet and have less nutritional value. The Committee requests the Government to provide information on the measures taken or envisaged to assist these communities to return to traditional food growing and to start up programmes to encourage activities geared towards sustainable development.

36. Article 24. Social security. The Committee notes the information in the communication from the ADEP concerning a lack of social security coverage for the members of several indigenous communities in the province of Jujuy. The Committee requests the Government to provide information on the measures adopted or envisaged to extend such coverage to indigenous peoples throughout the country, indicating to the extent possible the affiliation rates of the last few years.

37. Article 25. Health. The Committee notes that according to the information supplied by the Government, the National Health Insurance System was established for the whole population without any social, economic, cultural or geographical discrimination. The Committee notes with concern in this connection that, according to the communication from the ADEP, there are serious malnutrition and infant mortality problems. It also notes the information concerning the scarcity of health personnel - in terms both of numbers and of specializations - in several areas of the province of Jujuy and the lack of adequate transport to visit the various regions or convey persons who need medical care. The Committee requests the Government to provide information in its next report on the measures taken or envisaged to ensure adequate medical care in regions populated by indigenous communities which are far removed from medical centres, together with information on any programmes for training members of the communities themselves.

38. Articles 26 to 29. Education The Committee notes the information supplied by the Government on the activities of the "Inter-cultural Indigenous Education Support" programme and the project "Meeting the Educational Needs of the Indigenous Population" of the Social and Educational Plan (PSE) to develop and improve education in urban and rural indigenous communities. It also notes with interest the information on the activities conducted for pupils of a number of Mapuche, Toba, Mbya-Guaraní, Mocoví, Wichí and Kolla communities which in some cases include teacher training and the production of teaching materials. It notes in particular that in developing teaching materials account is taken of the historical, geographical and cultural features of La Quebrada de Humahuaca, and that teaching materials are being developed in the Wichí language for members of the communities in the province of Formosa.

39. The Committee notes that, according to the Government, in the provinces of Misiones and Salta, despite the legislation, local education policies are still in the experimental phase.

40. The Committee requests the Government to continue to provide information on progress made in inter-cultural bilingual education (EIB), particularly in the development of teaching materials that take into account the cultural differences of indigenous peoples; the training of indigenous teachers; and the participation of the communities in education projects, particularly in the provinces of Misiones and Salta. The Committee requests the Government to provide information in its next report on the activities, and their results, conducted under the other programmes referred to in the report.

41. Article 31. Elimination of prejudice. The Committee requests the Government to provide information in its next report on educational activities to eliminate any prejudice the non-indigenous population may hold towards indigenous people.

42. Article 32. Contacts and cooperation across borders. The Committee requests the Government to provide information on any agreements that may exist with neighbouring countries to facilitate contacts and cooperation between indigenous peoples across borders. The Committee would also be grateful if the Government would provide information on activities conducted under the Cultural Integration Agreement between Argentina and Bolivia concluded pursuant to Act No. 25034 concerning the indigenous communities of both countries.

43. Article 33. Administration. The Committee requests the Government to provide information in its next report on the manner in which the activities of the INAI and the many provincial councils and institutes are coordinated in order to apply the Convention, and on coordination between the latter and the recently established "Committee to Align Domestic Legislation with the Indigenous and Tribal Peoples Convention, 1989 (No. 169), of the International Labour Organization".

44. Parts IV, V, VI, VII and VIII of the report form. The Committee requests the Government to provide the information requested under these items.