Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

1. The Committee notes the Government’s detailed report and the annexes thereto. It notes that the Office provided technical assistance on 11 and 12 September 2006 following a request from the Government, with the aim of addressing the issues raised by the Committee in its most recent comments. In that context, the Ministry of Labour’s International Affairs Department examined with the Office the need to strengthen the institutional basis in order to give better effect to the Convention, particularly the bodies responsible for coordinated and systematic action (Articles 2 and 33 of the Convention), and those responsible for consultation, participation and representativeness issues. The Committee notes with particular interest that, according to the report, the Government has adopted and is planning various measures to achieve these objectives gradually.

2. The Committee notes with interest that at the Government’s request, a workshop/seminar on the Convention is being organized with technical assistance from the Office for April 2007 and is to be attended by representatives from the bodies that apply the Convention, from the provinces and from indigenous peoples.

3. Article 1, paragraph 2. Self-identification and legal personality. The Committee notes that to obtain recognition, indigenous communities may apply to the National Registrar of Indigenous Communities (ReNaCi) for legal personality, and that in some provinces it can be obtained from provincial registrars, and that the National Indigenous Institute (INAI) helps the communities to prepare the requisite documents. It further notes that there has been progress in the recognition of certain communities, including eight communities in the Province of Río Negro. The Committee hopes that the Government will pursue its efforts to ensure that in the near future, a high proportion of communities obtain recognition and hence full enjoyment of all the rights deriving from it. The Committee notes that the ReNaCi has registered all indigenous communities, whether or not they have legal personality, and requests the Government to send information on the percentage of communities that already have legal personality and the percentage that gain recognition by the time of the Government’s next report, so that the Committee may ascertain the progress made in this matter.

Consultation and coordinated and systematic action

4. Articles 6, 2 and 33. The Committee notes that in order to ensure that indigenous people participate in the “Committee to align the domestic legislation with Convention No. 169”, procedures are being established for such participation. With this in view, the Executive, through the INAI, has promoted the establishment of the Indigenous Participation Council (CPI). According to the report, the CPI is made up of indigenous representatives of all the indigenous peoples in each province, elected by genuine community representatives’ assemblies. A second stage will see the establishment, through the CPI, of the Coordinating Council provided for in Act No. 23302, which will consist of representatives of the Ministries of the Interior, the Economy, Labour, Education and Justice, the provinces and the indigenous peoples. The Coordinating Council’s duties include overseeing the National Register of Indigenous Communities, identifying problems and establishing priorities for solving them, and setting up the INAI’s programme of activities for the long and medium term. Furthermore, at its first national meeting, the CPI set up a bureau for the coordination of representatives at regional level. The Committee hopes that the Government will pursue its efforts to put the Coordinating Council into operation at an early date and that it will report on progress made regarding this matter. It also asks the Government to specify whether the minutes of CPI meetings are public, enabling indigenous communities to keep abreast of issues dealt with in the CPI thus ensuring transparency in consultation and participation procedures and in their results, which will also influence the extent to which they are observed. The Committee would also be grateful if the Government would state whether only communities with legal personality participate or whether other communities may also take part whether or not they have legal personality. While noting with interest that the Government is laying institutional bases for coordinated and systematic application of the Convention, the Committee hopes that the Government will pursue its efforts to strengthen these bodies in order to broaden the institutional basis for further participation of indigenous peoples in public policies affecting them, in accordance with Articles 2 and 33 of the Convention. Please report on progress made in this regard.

5. Article 15, paragraph 2. Natural resources. The Committee notes that a decision of 2006 by the Administrative Tribunal of the Province of Jujuy ordered the provincial government to comply with Article 15(2) of the Convention by allowing the participation of indigenous communities in all administrative proceedings concerning lands which might affect their rights in some way, particularly proceedings before the Administrative Court for Mines. It also notes that a decision of 2004 in the Province of Chaco ruled that the Forestry Act was unconstitutional because the indigenous peoples were not consulted about it. While noting with interest that the courts are applying the provisions of the Convention, which in Argentina take precedence over other laws, the Committee requests the Government to pursue its efforts to incorporate this Article on consultation and natural resources in the legislation in such a way as to ensure uniform application in the various provinces. The Committee hopes that the Government will keep it informed of progress in this respect.

6. Application of the Convention and federalism. The Committee also notes that the Government refers to difficulties in applying some key provisions of the Convention, such as those pertaining to land and natural resources, because of the deepening of federalism that occurred following the constitutional reform of 1994 which placed responsibility for these matters in the hands of the provinces. It notes the priority given to the need to establish federal competence for matters involving indigenous communities and peoples. Furthermore, according to the report, article 75(17) in fine of the Constitution of the Argentine Republic provides for involvement of the provinces in the issuing of legislation, which means that the provinces can take part in developing the rights of indigenous peoples and communities in law, provided they recognize the minimum fundamental rights laid down in the national Constitution, it being understood that in Argentine law international treaties take precedence over the ordinary law. The Committee hopes that the national Government will take the necessary steps to disseminate the rights laid down in the Convention among provincial governments and parliaments, and that it will make use of the abovementioned participation to ensure that the provincial parliaments develop legislation that meets the requirements of the Convention. It also asks the Government to provide information on progress made in this regard.

7. Lands – evictions. The Committee notes with interest the promulgation of Act No. 26160 of 23 November 2006 suspending for four years the execution of any court or administrative decisions or proceedings for the eviction of indigenous communities from lands they traditionally occupy. It also notes with interest that in the first three years following the entry into force of the new law, the INAI is to carry out a survey of the technical, legal and registration aspects of the ownership status of these lands and a fund of 30 million pesos is to be set up for the survey and for the regularization programmes, for which the INAI will be responsible. The Committee invites the Government to provide information on the practical application of the Act and on the status of the survey and the regularization process. Noting that the new law is to apply to original indigenous communities “whose legal personality has been registered in the ReNaCi or relevant provincial registry, or pre-existing communities”, it asks the Government to take all necessary steps to speed up recognition of the legal personality of communities that have not yet obtained it and that meet the requirements of Article 1 of the Convention, to specify the meaning of the term “pre-existing communities”, and to keep the Committee informed in this regard.

8. The Committee notes that at its 297th Session in November 2006, the Governing Body declared receivable a representation by the Union of Education Workers of Río Negro (UNTER) alleging non-compliance by the Argentine Government with some provisions of the Convention.

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