Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes that the Government’s report was received on 30 September 2008, therefore the Committee will examine it at its next session. The Committee notes a communication from the Educational Workers’ Union of Río Negro (UNTER), received on 28 July 2008 and forwarded to the Government of Argentina on 25 August 2008. The Committee notes that the Government has not yet provided any reply to this communication. The Committee will examine the communication in more detail next year together with the Government’s reply. The Committee notes that the communication refers to the following issues.

Legislation. According to the communication, as from the constitutional reform of 1994 and the adoption in January 2007 of National Act No. 26,197 on the “provincialization” of hydrocarbons, it is the provinces that issue permits for prospecting and concessions for the exploitation and transport of hydrocarbons and oversee compliance. The above Act was not submitted to consultation and contains no provisions on the right of consultation and participation laid down in the Convention. Furthermore, Provincial Act No. 3,266 of 1999, regulating the procedure for evaluating environmental impact, is inconsistent with the right of consultation and participation laid down in Articles 6, 7, 15(2) and 17(2) of the Convention. The same criticism is directed to Provincial Act No. 2,669 on Protected Natural Areas (ANPs), as amended by Act No. 3,193.

Bidding and consultation procedures. The communication indicates that the Province of Río Negro has jurisdiction over four geological basins (Neuquina, Colorado, Niriñau and Cañadon Asfalto Meseta de Somuncurá). Bidding processes for prospecting are well under way, and the Neuquina basin has been under intense exploitation for decades. The communication lists the communities living on the lands under exploitation or for which bidding is in progress. It also indicates that further to the Provincial Hydrocarbons Prospection Plan 2006–07, 14 new areas have been pre-awarded in three geological basins without the consultation and participation required by Articles 6, 7 and 15(2) of the Convention.

Protected Natural Areas. According to the communication, to designate an area as an ANP does not imply protection of the lands and the natural and cultural resources of the indigenous peoples, and the Auca Mahuida ANP in Neuquén has been devastated by the work done on oil prospecting and exploitation. The communication states that the ANPs were created on ancestral lands of the Mapuches (Wall-Mapu) and lists them, citing Meseta de Somuncurá, Río Azul-lago Escondido and the Guaitecas cypress forest. It asserts that the right of participation and consultation laid down in the Convention was not observed when the ANPs were created and their management plans drawn up. Although the management plans are required by law to set forth the human necessities to be satisfied, there are no specific bodies or mechanisms for implementing the right of participation and consultation of the indigenous peoples living on lands designated as ANPs.

Representation GB.303/19/7. The Committee notes that in November 2008, the Governing Body adopted the report on the representation made under article 24 of the ILO Constitution by the UNTER, alleging the non-observance of certain provisions of the Convention. The report examines the issues of consultation at national level as well as issues of consultation, participation and performance of traditional activities of indigenous peoples in the province of Río Negro. The Committee notes that it has been requested to follow up on the implementation of the recommendations of the Governing Body set out in paragraph 100 of the abovementioned report, in which the Governing Body requested the Government to:

(a)   continue making efforts to strengthen the Council for Indigenous Participation (CIP) 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 Governing Body’s 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. 26,160, 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 Río Negro Province involving all the truly representative organizations of the indigenous peoples, as set out in paragraphs 75, 76 and 80 of the Governing Body’s report, in particular in the process of implementing national Act No. 26,160;

(e)   in implementing Act No. 26,160 to make substantial efforts, in consultation with, and with the participation of, the indigenous people of Río Negro Province, 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 Governing Body’s report; (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 Río Negro Province, including interim measures, with the participation of the indigenous people 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 requests the Government to provide any additional information regarding the issues raised in the representation and those raised in UNTER’s communication, in particular regarding consultation and participation, so that the Committee may fully examine these matters in 2009.

[The Government is asked to reply in detail to the present comments in 2009.]