Indigenous World 2020: Argentina
Argentina comprises 23 provinces with a total population of approximately 40 million. The most recent national census (2010) gave a total of 955,032 people who self-identify as descended from or belonging to an Indigenous people. There are 35 different officially recognised Indigenous Peoples in the country. They legally hold specific constitutional rights at the federal level and in various provincial states.
In addition, ILO Convention 169 and other universal human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social and Cultural Rights (ICESCR) are of constitutional force in the country. Argentina voted in favour of the UN Declaration on the Rights of Indigenous Peoples.
Indigenous Peoples and political change
2019 was an election year and resulted in the election of a new president and government of a different political persuasion to that of the last four years. This will undoubtedly have an impact on policies aimed at guaranteeing Indigenous Peoples’ rights.
Unlike the previous government, under whom security policies had become entrenched and Indigenous communities were specifically being harassed and criminalised (See The Indigenous World 2018 and 2019), the rhetoric of this new government suggests a significant transformation of its relationship with Indigenous Peoples, demonstrating a desire to recognise their territory by granting collective property titles to their land and implementing the right to consultation, as confirmed by the new President of the National Institute for Indigenous Affairs (INAI).1 There is, however, another rhetoric present within the same political space that indicates the precise opposite: the promotion of extractive activities – many of them on territories claimed by Indigenous communities – and fracking in the Vaca Muerta unconventional oil fields, clearly disregarding the importance of natural assets such as water. The lack of water is also a result of the impact of climate change on the region, which is affecting both production capacity and quality of life.
Together with the Global Environment Facility (GEF), the United Nations Development Programme (UNDP) has been providing strategic support to territories and areas preserved by Indigenous Peoples and local communities in Argentina (territorios y areas conservados por pueblos indígenas y comunidades locales or TICCAs, in the project’s global terminology), in other words, “natural and/or modified ecosystems that contain important biodiversity values, ecological benefits and cultural values, voluntarily preserved by Indigenous Peoples and local communities through customary laws or other effective measures”. This global project aims to lay the foundations for a different relationship between Indigenous Peoples and their environment, based on the care the communities provide to their ecosystems, and which has notable and global-level impacts on climate change.
The country’s jurisprudence continues to be ambivalent; there has been no legislation to strengthen either current laws or stated policies, and Indigenous women’s movements combining the ethic of care with their concern for Mother Earth – are the ones most emphatically raising the banner of global action, mobilising to get their voices heard.
Progress (and setbacks) in court decisions
As in previous years, 2019 was notable for a number of highly significant court judgments with regard to protecting Indigenous rights being passed alongside others that continue to perpetuate perspectives impervious to current legislation on these rights. One positive judgment was that in the case known as “Rincón Bomba”, involving the Pilagá people in Formosa Province2 in relation to a massacre that occurred in 1947 and for which the judge finally held the Argentine state responsible.
Notable in this ruling was its legal framing as the judge declared that the action had constituted a crime against humanity in violation of the Rome Treaty. This legal classification is invaluable as it is the first time a court has classified the Argentine state’s extermination policies as such and the first time the justice system has verified historical events in conjunction with the claims, demands and struggles of the Pilagá people.
Another example of “good case law” protecting rights is that of a court of first instance in Neuquén Province that acquitted members of the Campo Maripe community, settled in the area of exploitation of the Vaca Muerta oil field, of encroachment.3 This ruling was taken to appeal, however, and the Court of Appeal overturned the decision, ordering a re-trial, making an assessment of the evidence that was beyond its jurisdiction and ignoring both the Indigenous status of the accused and Indigenous rights in force.
The Indigenous community took the case to the Higher Provincial Court of Justice where it was also rejected. It is now pending a final decision.
While many court rulings often simply endorse political decisions or other interests, there are others that are more receptive of Indigenous rights although these often end in failure. In any case, progress for long held-back Indigenous communities in matters of case law moves very slowly.
The continually postponed law on Indigenous communal ownership
If Indigenous Peoples are to overcome their evictions, the advance of neo-extractivism onto Indigenous territories, criminal proceedings for encroachment and violent actions resulting from land claims once and for all then there will need to a debate on the law on Indigenous communal ownership, a law envisaged in the Argentine Constitution (Art. 75 para 17).
Although emergency legislation is in place (see The Indigenous World 2017 and 2018) that requires the implementation of a legal and technical cadastral land survey (progress in which we cannot touch on further here), structural change will need to take place by means of a substantive law that sets out in detail the procedure for accessing collective land titles.
There are currently a number of draft bills of law in the Congress of the Nation (Parliament) by which Indigenous communal ownership could be implemented. Such a bill of law would need to be put out to the communities for consultation and hence the whole process, both the parliamentary debate and the Indigenous consultation, is significantly complex. One of the draft bills is particularly interesting; it was drawn up with Indigenous input and submitted to a number of different regional fora.4 It not only includes a correct concept of Indigenous communal ownership – an autonomous constitutional right of a collective nature (important when there is so much confusion over whether it is a real right or what kind of right it is) – but also strengthens that concept on the basis of a number of articles in existing international law.
It is, however, unlikely that the necessary consensus will be achieved to obtain its parliamentary debate. There is no genuine interest from government in a law that permanently allocates territory to the Indigenous communities; economic interests continue to hold very powerful sway and it is unlikely that this “conflict of interest” will be resolved in the short to medium-term.
Malnutrition, abandonment and death in northern Argentina
The tragic deaths of Indigenous children due to malnutrition in 2019 were simply a reflection of an historical situation among some Indigenous communities in the north of the country and such cases are therefore likely to occur again in the future. The Wichí communities of Salta Province are particularly vulnerable and the various national and provincial governments have been unable to bring this situation under control or propose policies and alternatives to their hunger and abandonment. In the Salta Chaco region such fatalities have been occurring regularly for years. The working conditions of the Indigenous communities generally – they are migrant labour, which means permanent relocation –, the general conditions in which they live, the state’s apathy and the gradually deteriorating environmental context due to deforestation, regular flooding (often caused by this deforestation), the expansion of the agricultural frontier and extractive activities are all creating a situation that is difficult to reverse.
Difficulties in accessing health care, clean water and the lack of substantive solutions are all reasons that combine not only to perpetuate the deaths but also to force people to live a reality that has no prospect of being structurally addressed. At the time of writing, deaths are again being reported among Wichí children, a reminder of the abandonment many of the country’s Indigenous communities continue to suffer.
Indigenous women, femicides and “terricide”
The Second Parliament of Indigenous Women for Good Living took place in July 2019. Women from the 36 Indigenous nations met to discuss structural aspects of their lives. An assessment of land and body, the economy, fair trade, “femicides” in the communities, education and training in ancestral practices, were all discussed at the meeting, which forms part of a space that is gradually being consolidated by Indigenous women on the basis of their own world vision.
In October 2019, Indigenous women again protested and demanded their rights by peacefully occupying the Ministry of the Interior. Their grievances at situations of violence, Indigenous femicide, pillaging of and eviction from their lands, and the murder of those lands – together with some specific cases of violent deaths among their children – were the focus of their protests.
It is interesting to consider for a moment this new concept of “terricide”,5 defined as the murder of ecosystems, the people living in them, and the forces that govern life on the land. In the view of some Indigenous women, “terricide” is simply an extension of the concept of climate change (which is a reductionist concept in their view), one that goes beyond an anthropocentric view to focus on its triple dimension: ecosystems, energy and spiritual forces, and Indigenous Peoples.
The Indigenous women’s movement is distinct from the feminist movement and its aim is that they should be recognised as women with their own voice, antipatriarchal, fighting for life and whose main demand is the right to good living, the core of their world vision.
Final considerations
2019 ended in a deep social, political and economic crisis. This crisis affected the Indigenous communities equally, and their organisations and spokespersons – both opposition forces and government members at the end of their mandate were unable to reach substantive agreements that would enable them to adequately protect their rights or that would strengthen them as peoples.
The year ended with a new government and, at least by all appearances, a new political agenda. It will be several months before we are able to make any concrete assessment of the government’s handling of Indigenous Peoples’ historic demands. The enormous contradictions running through its policies, already manifested in numerous public statements, are however indicative of significant internal disagreement, primarily around the country’s development model, its energy matrix and the ever increasing demands of the Indigenous communities, focused on respecting their ancestral relationship with their living environment.
If these tensions cannot be satisfactorily resolved, there will likely be further conflict. There is, however, also hope for a change in policy that will enable the Indigenous Peoples to consolidate themselves on their territories, opening the door to effective enjoyment of their rights and laying the bases for a genuine intercultural dialogue. Only time will tell how possible this may be.
Silvina Ramírez (This email address is being protected from spambots. You need JavaScript enabled to view it.) is a lawyer with a PhD in law. She lectures on postgraduate courses in the Faculty of Law at Buenos Aires University (UBA) and Palermo University. She is a member of the Association of Indigenous Law Lawyers (AADI) and Academic Advisor to the Centre for Public Policies for Socialism’s (CEPPAS) Legal Group for Access to Land (GAJAT).
This article is part of the 34th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here
Notes and references
- See interview with Magdalena Odarda, new president of the National Institute for Indigenous Affairs (INAI) at pagina12.com.ar
- “Federation of Indigenous Communities of Pilaga Pen for damages”; No. FRE 21000173/2006.
- “Campo, Juan Albino et al for encroachment (Art. 181 PC)”.
- See the report presented by Darío Rodríguez Dutch, Secretary of the Unicameral Committee for Indigenous Peoples of the Senate of the Nation on dissemination, discussion and analysis of project s-1984/19(Ex S 691/17) establishing the system for implementing Indigenous community ownership, in workshops held in Río Negro, Chaco and Salta provinces, July 2019.
- It was Moira Millán, Mapuche leader, who first began to use this concept.
Tags: Land rights, Women, Human rights
