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mar..
25
2009

march 25 2009
Argentina, Indigenous rights ignored
Hernán Scandizzo


Eviction of indigenous communities continues despite constitutional recognition of native lands.

The progressive spirit behind indigenous rights laws in Argentina has not necessarily translated into public policies or legal rulings to back them up.

The incorporation of indigenous rights into Argentina´s constitution in 1994 and the country´s ratification of the International Labor Organization´s Convention 169 on the rights of native peoples planted the seeds to advance these rights that have been ignored and violated for centuries.

The constitutional reform guaranteed indigenous peoples the right to a bilingual and intercultural education, as well as the legal personage, meaning each group´s community could be considered one person under the law. It guaranteed these communities the rights to their traditional, native lands and participation on the management of natural resources and other issues that directly affect them, one of the pillars of Convention 169.

But in 2002 began a wave of evictions of native communities off their lands in northern and central Argentina, where the agricultural industry was expanding over lands traditionally held by indigenous groups. Courts gave big farming company owners land titles to some of these areas where soy crops have a high profitability.

To stop this wave of evictions, in November 2006, lawmakers passed an emergency bill on Indigenous Community Property that put a four-year ban on the evictions and ordered the regularization of indigenous lands. But little has been done to grant land titles to these indigenous communities. Representatives Alejandro Nieva and Miguel Giubergia, of the opposition Radical Civic Union presented a bill this month that would extend the eviction ban one more year.

Good intentions insufficient

Last November, indigenous and non-indigenous lawyers formed the Indigenous Law Lawyers´ Association make sure the law is fulfilled.

“We formed this association because we noted that in the rest of the legal servants — above all, judges, prosecutors, defenders with whom we work on a daily basis — the right of indigenous peoples seems to be a bunch of good intentions, but not a positive law — law backed by concrete legislation —which is in force and must be obeyed,” said Juan Manuel Salgado, the association´s president.

Salgado added that international agreements, the constitution, the International Court of Human Rights, and precedents set in the Argentina´s Supreme Court favor indigenous demands, and that the conduct of most of the judiciary is “illegal, to put in brusquely.”

Private vs. community property

Mara Puntano, counsel for the Wichi and Guarani communities and the coordinator of the association in the northwestern provinces says that the Western judicial system is “based on private property” while native peoples´ system is based on community property.

“It´s almost impossible that this concept of community property enters into the heads of the judges that are trained in private property,” that is, the Civil Code, Puntano said. “That´s what we´re trying to do: have those rights take effect and for community property to be accepted.”

Both national and provincial governments have been slow to accept community land titles. In early March, the governmental Institute of Land Settlement, the southern Chubut province land title office, gave 17 land titles to the Tehuelche community, nine of which were split up and the villagers received individual lots.

According to Puntano, defending indigenous peoples´ rights is “to attack the basis of the Western judicial system.” Law is an instrument of social control. Who controls socially? He who has power. Those are the ones who have put the base of the judicial system and the native peoples, demanding their rights, totally attack this system.”

Struggle of interests

“We´re before a state that while was noted for approving whatever norms appeared, today it is paying a lot of attention on what the approval of these laws mean, the problems that they´re going to create for the rich that have taken over indigenous lands,” said Roberto Ñancucheo, head of the Native Peoples Office of the government-run Environment and Sustainable Development Secretariat, as well as spokesman of the Neuquen Mapuche Confederation.

In this sense, the previous, free and informed consultation of indigenous peoples before public policies that affect them are put into place as well as the right to administer natural resources, continue to be the subject of heated debates.

One example is in the province of Neuquen, where the Mapuche are not taken into account by local authorities in dolling out hydrocarbon or mining concessions, or tourism areas on their lands. In December, state prosecutor Raúl Gaitán said that the International Labor Organization´s Convention 169 is only a policy guideline and is not regulated yet under local law.

During the founding of Indigenous Law Lawyers´ Association, Ñancucheo said that “the time has come to define, not just from the government but the other powers that this country has, who are indigenous, who make up the people, who make up the communities. We understand that we have to strengthen the work that is being done because we need to come out with a strong position faced with what´s coming to us.”

Eduardo Hualpa, of the Patagonian Team of Human Rights Lawyers and Social Studies is more optimistic.

“We´re overcome periods when [indigenous] rights themselves were denied,” he said. “I think that in general, our courts are unwilling to an immediate incorporation of new ways of seeing law, but there will be no alternative for them. I think that this battle, if not won, is advanced.” —Latinamerica Press.

http://www.latinamericapress.org/articles.asp?art=5825