Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

The Committee notes a communication from the Association of Health Professionals of Salta (APSADES), of 12 June 2009, forwarded to the Government on 2 October 2009. It also notes a communication from the Confederation of Argentinean Workers (CTA), of 31 August 2009, forwarded to the Government on 18 September 2009. The Committee will examine these communications at its next session together with any observations of the Government in this regard. The Committee requests the Government to respond to the communication of APSADES and CTA.

Follow-up to the representation submitted under article 24 of the ILO Constitution (report of the Governing Body (GB.303/19/7) 12 November 2008.) The Committee recalls that in November 2008, the Governing Body adopted a report on the representation made under article 24 of the ILO Constitution by the Educational Workers’ Union of Río Negro (UNTER), in which the Governing Body examined 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, in its report, the Government refers to the Provincial Survey Programme on Indigenous Communities for the Province of Río Negro, which provides for the survey of 124 communities to be executed over the next two years. However, the Committee notes with regret that no information is provided in reply to the recommendations formulated in paragraph 100 of the Governing Body’s report. The Committee therefore asks the Government to provide information, in its next report, with respect to the following recommendations formulated by the Governing Body:

(a)   continue making efforts to strengthen the CPI 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 this 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 involving all the truly representative organizations of the indigenous peoples, as set out in paragraphs 75, 76 and 80 of this 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, paragraph 3, of the Convention; (2) the question of the levy for land use referred to in paragraph 92 above; (3) any problems in obtaining legal personality; and (4) the issue of dispersed communities and their land rights;

(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.

Communication from the UNTER of July 2008. The Committee recalls that in its previous observation it referred to a communication from UNTER, received on 28 July 2008, in which various issues related to the alleged violation of Articles 6, 7, 15(2) and 17(2), of the Convention are raised. The Committee asked the Government to provide information on the points raised in UNTER’s communication, so that it could fully examine these matters in 2009. The Committee notes with regret that such information was not received. The Committee urges the Government to provide complete information in its next report on the issues raised in UNTER’s communication.

Follow-up to the seminar/workshop. The Committee notes that, according to the Government, as a result of the seminar/workshop which took place in May 2007, involving representatives of indigenous communities, social partners, the National Institute of Indigenous Affairs (INAI), the Ministry of Labour and the ILO, among others, proposals and an action plan were drawn up for the purpose of applying the Convention relating to the following points: lands, work, health and social security, vocational training, education and communication, and participation and consultation. The Committee requests the Government to provide information on the follow-up to the proposals and action plan, and the results achieved, particularly with regard to participation and consultation.

Coordinated and systematic policy

Coordination Council provided for in Act No. 23302. Further to its previous comments, the Committee notes with interest that pursuant to INAI Decision No. 042 of 28 February 2008, the Coordination Council provided for in section 5 of Act No. 23302/85 has been created. The Committee notes that pursuant to this Decision, the persons mentioned in the annex are included, on a provisional basis, as the representatives of indigenous communities and shall remain in their posts until replaced by other representatives elected in accordance with the mechanisms established by INAI Decision No. 041/2008. The Committee also notes the establishment of the Advisory Council which has the functions set out in section 15 of Regulatory Decree No. 155/89. While it considers that the establishment of the Coordination Council and the Advisory Council constitutes progress, the Committee requests detailed information on the procedures for the election of indigenous representatives, in particular whether such procedures ensure that the indigenous peoples are able to elect their representatives without any interference. The Committee also requests copies of the decisions mentioned.

Coordination of the various bodies representing indigenous peoples. The Committee notes that the Indigenous Participation Council (CPI) has the functions set out in Act No. 26160, Regulatory Decree No. 1122/07 and Decision No. 587/07 which creates the land survey programme. According to the Government, the CPI has been given considerable recognition by the institutions of the national Government and those of the provincial governments and its minutes are made public to ensure that the communities are aware of the issues dealt with by the CPI. The Committee requests the Government to provide information on the distribution of competencies and the coordination mechanisms established between the Coordination Council, the Advisory Council and the CPI.

Lands. Emergency Act No. 26160 on the ownership and possession of traditionally occupied lands. The Committee notes that a central coordination team has been set up in this regard. The Committee notes the detailed information provided by the Government concerning the national programme entitled “Indigenous Communities Land Survey” (Re.Te.Ci.), created under Decision No. 587 of 27 October 2007. Furthermore, the Government indicates that, at the decentralized level, a technical operation team will be set up in each province, which will work in coordination with the CPI and with a member of the provincial executive branch appointed by the Governor. The Committee notes that a “National Coordination Network for the Survey of Lands of Indigenous Communities” has been established and the following instruments have been created to implement the programme: (a) the “jaguar” system, which is a geographical information system; (b) a social community questionnaire, which is a tool for gathering socio-demographic data; (c) a survey of natural and cultural resources; and (d) an administrative procedures and operations manual. As of September 2008, projects were being developed relating to the regularization of lands in Buenos Aires (involving 40 communities), Chaco (involving 40 communities), Río Negro (involving 87 communities) and Salta (involving 330 communities). The Committee notes that the state of emergency declared with regard to the possession and ownership of traditionally occupied lands will last for four years from 23 November 2006, the date on which Act No. 26160 entered into force, and that the suspension of evictions will therefore be lifted on 23 November 2010. The Committee requests the Government to continue providing information on the progress made and difficulties encountered with regard to the regularization of lands traditionally occupied by indigenous peoples, including information on the following:

(i)    lands claimed by indigenous peoples, including quantity and percentages by province;

(ii)   lands regularized in relation to these percentages; and

(iii) lands to be regularized.

Please also indicate the measures envisaged to guarantee the rights laid down in Article 14 of the Convention if the regularization process has not been completed within the period mentioned.

Advances in case law. The Committee notes with interest the detailed information provided by the Government on new decisions relating to the rights established in the Convention. These decisions appear to be in line with the Convention, in terms of both lands and participation. With regard to lands, the Committee notes, for example, the decision of the Magistrate’s Court of the Fourth District of the Province of Neuquén in the case of Antiman, Víctor Antonio y Linares, José Cristóbal Linares s/usurpación, of 30 October 2007, in which the court recognized the new era with regard to rights over indigenous lands, ruling that it was “an era of recognition, recovery and reassertion of rights enshrined in the Constitution, as a result of which a decision criminalizing the conduct of the Mapuche people on 31 January 2005 would mean going back in time and failing to recognize the current legal and constitutional framework”. With regard to participation and natural resources, the Committee notes that the Supreme Court of Justice, in a decision of 26 March 2009 (S.1144.XLIV, Salas, Dino y otros c/Salta, provincial y Estado Nacional), confirmed the suspension of authorizations for felling and clearing until the completion of an environmental study and stipulated that the study had to be carried out “with the broad participation of the communities living in the affected area”. The Committee requests the Government to continue providing information on this matter. Furthermore, referring to a 2004 ruling which it noted in its previous comments, declaring that the Forestry Act of the Province of Chaco was unconstitutional because the indigenous communities had not been consulted, the Committee requests the Government to report on the measures taken as a result of the ruling.

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

[The Committee is asked to reply in detail to the present comments in 2010.]