Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

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

Article 1 of the Convention. Peoples covered by the Convention. The Government indicates in its report that since 2001, the National Population, Household and Housing Census includes membership of an indigenous people among the variables to be taken into account in replying to the question on self recognition as a descendant of an indigenous people. In the period from 2004 to 2005, a total of 600,329 inhabitants recognized themselves as members or descendants of indigenous peoples. In 2010, according to the self-recognition criterion, the indigenous population comprised 955,032 inhabitants. The Committee notes that the ruling of 10 December 2013 (C.1324.XLVII), handed down by the Supreme Court of Justice of the Nation, refers to self-awareness (peoples’ awareness of their indigenous identity) as a subjective criteria for the identification of indigenous peoples. The Confederation of Workers of Argentina (CTA Autónoma), reports that the national legislation takes into account only indigenous communities registered as civil associations under private law, and expresses concern at the formalities the communities have to complete in order to obtain legal status. The Committee requests the Government to continue to supply information on the manner in which it is ensured that all the peoples included in the scope of the Convention are protected by the measures for its implementation. Please indicate how the Government ensures that indigenous communities that have not formed civic organizations are afforded the protection of the Convention.

Articles 2 and 33. Coordinated and systematic action. The Government indicates in its report that the National Institute of Indigenous Affairs (INAI) has concluded agreements with national and provincial bodies with a view to encouraging the formulation of strategies for indigenous peoples, with the involvement of the National Council for Indigenous Participation (CPI). The CTA Autónoma indicates that the need for harmonization, by the provincial governments, of the minimum standards of the rights laid down in the Convention. The Committee notes that the ruling of 10 December 2013 (C.1324.XLVII) handed down by the Supreme Court of Justice of the Nation held that both the nation and the provinces have sufficient regulatory authority over the rights of indigenous peoples, in so far as this does not imply, on the part of provincial states, any contradiction with or lowering of the standards laid down in federal laws or regulations. The Committee requests the Government to continue to send information on the measures taken to promote coordinated and systematic action between the nation and the provinces regarding the subjects covered by the Convention.

Articles 8–12. Customary law. Legal proceedings. The CTA Autónoma indicates that there are no laws or regulations to ensure that indigenous peoples may use their own methods of dispute settlement or that their customary law is recognized by state bodies. The Committee requests the Government to provide examples of judicial decisions that have taken account of the customs or customary laws of indigenous peoples.

Article 14. Lands. Suspension of evictions. In its observation of 2013, the Committee noted that Act No. 26894, published on 21 October 2013, granted an extension until 23 November 2017 of the suspension of evictions pending completion of the land survey of indigenous communities provided for in Act No. 26160, published on 29 November 2006. The Government indicates that legal services have been put in place to bolster the process to organize and defend the communities faced with attempts to evict them. The INAI lends support to provincial programmes that seek to regularize indigenous ownership in public lands. The CTA Autónoma indicates that orders for the eviction of indigenous peoples continue to be issued, in breach of Act No. 26160. The Committee requests the Government to provide up-to-date information on the suspension of evictions provided for in Act No. 26160 and Act No. 26894, as well as on the measures taken to ensure their implementation.

Province of Mendoza. Huarpe Milcallac people. Land regularization. The Government indicates that in January 2015, pursuant to Provincial Act No. 6920 of the province of Mendoza, the plan for the mensuration of areas liable to expropriation with a view to regularizing the lands of the Huarpe Milcallac people was entered in the provincial land register of Mendoza. The Committee requests the Government to continue to provide information enabling it to ascertain the manner in which the provisions of the Convention are applied in Mendoza, indicating in particular the progress made in the land regularization process.

Province of Neuquén. Paichil Antriao Mapuche community. Protection of social, cultural, religious and spiritual values and practices. Lands. The Government indicates that national Act No. 26160 is applied in the province of Neuquén through the implementation of the programme for the survey of lands occupied by the Mapuche communities of the province of Neuquén. To that end, an implementing committee has been set up comprising representatives of the provincial government and the INAI. One of its functions is to coordinate the land survey activities with the Neuquén Mapuche representatives on the CPI and the area lonkos (chiefs). The Committee notes that these activities have covered 27 communities in the province, on the proposal of the indigenous representatives on the implementing committee. With regard to the Lof Paichil Antriao community, the INAI took part in the Tawun (assembly) for the confirmation of the community authorities that took place in July 2015 in the locality of Villa la Angostura. However, the lands of that community have still not been regularized. The Committee requests the Government to continue to provide up-to-date information on progress made in the process to identify and regularize indigenous community lands in Neuquén. It also asks the Government to report on developments in the situation of the disputed piece of land in Villa la Angostura and the measures taken to overcome the difficulties encountered in recognizing and protecting the social, cultural, religious and spiritual values and practices of the Mapuche community.

Province of Río Negro. Consultation and participation. Traditional activities. The Committee notes that progress has been made in the land survey of 63 indigenous communities in Río Negro. The Government indicates that the provincial government has taken steps to facilitate the survey for communities that have not yet been covered. In its 2011 observation, the Committee took note of observations made in July 2008 by the Education Workers’ Union of Río Negro, reporting that the provincial authorities had granted permits for exploration in river basin areas, authorizing the establishment of protected natural areas without prior consultation of the Mapuche peoples inhabiting the area and without recognizing the rights of the Quintupuray and Lof Mariano Epufel Mapuche communities over the lands they traditionally occupy. The Committee requests the Government to continue to provide information on progress made in regularizing indigenous community ownership in the province of Río Negro and on the manner in which the consultation and participation procedures laid down in the Convention are conducted at provincial level. The Committee also requests the Government to indicate the measures taken to protect the rights of the Quintupuray and Lof Mariano Epufel Mapuche communities. Please also report on the issuing of marks and signs certificates to indigenous stockbreeders in Río Negro.

Province of Tucumán. Protection of fundamental rights. Chuschagasta community. With regard to the investigations into the death of an indigenous leader and the injuries of two members of the Chuschagasta community which occurred in October 2009, the Government indicates that, with a view to carrying out criminal proceedings relating to these crimes, the National Institute for Indigenous Affairs (INAI) carried out visits to observe the day-to-day living conditions of the community. The Committee requests the Government to continue to provide information on the proceedings against the perpetrators of the criminal offences committed in October 2009 against members of the Chuschagasta community, including on the eventual imposition of sanctions.

Quilmes indigenous community. Evictions. The Government recalls that by a decision of 3 September 2009 the Supreme Court of Justice of Tucumán suspended the eviction order affecting the Quilmes indigenous community and ordered mediation between the parties. Evictions have been suspended since 2009 and the 40 families belonging to the community hold the ownership of the four hectares in dispute. The Committee notes that the land survey of the Quilmes indigenous community was conducted in the framework of a specific agreement concluded by the INAI, the provincial Human Rights Secretariat and the People’s Ombudsperson of Tucumán. The report resulting from the survey was delivered to the community in August 2014. The Committee requests the Government to continue to send up-to-date information on the dispute over the lands possessed by the Quilmes indigenous community, and on progress made in the process to survey and regularize indigenous community lands in Tucumán.

Article 20. Recruitment and conditions of employment. The CTA Autónoma indicates that indigenous workers account for the majority of informal jobs in textiles and rural activities (fruit growing and horticulture), that the inspection services are inadequate in areas with high indigenous employment and that there is no relay of information on the rights of indigenous workers. The Committee notes that, at national level, the Ministry of Labour, Employment and Social Security has posited the inclusion of the indigenous population in the employment and training insurance schemes and in the More and Better Work for Youth Programme, offering varied training to facilitate job seeking as well as funding for undertakings. Furthermore, the INAI signed an agreement with the National Agricultural Technology Institute to promote development of indigenous rural communities that is based on intercultural dialogue and participation. The Committee requests the Government to report on the measures taken to ensure adequate labour inspection in areas and sectors employing men and women workers belonging to indigenous peoples.

Article 24. Social security. The Government indicates in its report that the indigenous peoples are covered by policies and programmes on social inclusion, labour market integration and social security that aim to achieve universal coverage. The Committee notes that the INAI plans to conduct a survey of 1,000 indigenous families to ascertain their living conditions. The Committee requests the Government to report on the results of the surveys on the living conditions of indigenous families, and on the impact of the measures taken to include indigenous peoples in social inclusion programmes and social security schemes.