The Indigenous World 2024: Argentina
Argentina is a federal country made up of 23 provinces and an autonomous city (Buenos Aires, the capital), with a total population of 45,892,285 million people, according to the 2022 census data. This last census does not provide specific information on the number of people in the country who are Indigenous or who perceive themselves as Indigenous. There are 35 officially-recognized Indigenous Peoples, although the process of identity recovery is a dynamic one and this number can vary, up to around 40 peoples, according to their organizations.
Legally, they have specific constitutional rights at the federal level and in most provincial states. In addition, a set of international human rights treaties, such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, among others, are in force, forming part of the constitutional body of law. ILO Convention 169 takes precedence over national laws (it does not form part of the constitutional body of law). It was ratified in 2000 and has been in force as an international treaty since 2001. In Argentina, the United Nations Declaration and the American Declaration on the Rights of Indigenous Peoples are also in effect with normative force.
Argentina is facing deep changes to its State structures as a result of the 2023 national elections and the new government administration, self-described as “libertarian”. Against this backdrop can be discerned the reinforcement of a model that is significantly opposed to recognizing Indigenous rights, especially their territorial rights.
Although this new administration only took office in December 2023, its initial measures are already ushering in an unfavourable political and legal scenario for Indigenous Peoples. 2023 was marked by the electoral campaign and political struggles and the Indigenous communities themselves are no strangers to the emerging tensions. At the time of writing this report, a Necessity and Urgency Decree (DNU, seemingly unconstitutional) and an “Omnibus” Law (so called because of the diversity of issues it includes) are being debated. These initiatives will radically transform economic, social, labour-related and political aspects of Argentine life, and will, naturally, have an impact on the existing rights of Indigenous Peoples. Suffice it to say that the DNU repeals Law 26,737 on the protection of rural lands, known as the Land Law, which sets out a framework to prevent the foreign ownership of high-demand lands for the specific advancement of extractive activities, real estate business, and other issues. Both regulatory tools are pending approval by Parliament, and the DNU is currently being challenged through the courts.
The Indigenous communities and their organizations (including the Mapuche Neuquén Confederation, CMN) are rejecting these legal instruments because they represent a threat their territory by promoting an extractive model, undermining food sovereignty and creating conditions for the concentration of economic power.
The foundations of the current situation were, in some ways, laid by the previous government – which ultimately opened the doors to this libertarian model – and this situation has been endorsed by the decisions emanating from provincial governments. It should be noted that the constitutional reform undertaken by the government of Jujuy Province is an enormous and ongoing source of conflict with the Indigenous communities. The reform, which was not put out to consultation with the communities and was deeply unconstitutional (failing to comply with the requirements in either form or substance), erects a State model that will encroach onto the territories. It was centrally designed to expand the exploitation of lithium, the region’s main resource and in global high demand due to its uses and limited sources.
This constitutional reform, which took place without any public participation, without any consultation of Indigenous Peoples, and which was enacted in an excessively short period of time, goes against all democratic principles. Although the text includes topics that would today be considered “politically correct”, such as climate change, animal welfare, spiritual welfare, etc., a careful reading reveals purposes that are incompatible with a State that claims to be egalitarian and discursively states that it respects Indigenous Peoples. The Indigenous mobilizations that have been taking place since June 2023 questioning its legitimacy (and which have reached as far as Buenos Aires), and the repression ordered by the government in response, are proof of this.
In addition, a new form of territorial dispossession of Indigenous Peoples should be noted. This is taking place through the creation of national parks and nature reserves, without any consultation, installing a kind of “neocolonial model of green conservation” that establishes a new form of expansion onto Indigenous territories, ignoring their presence. Activists and academics are denouncing the proliferation of such strategies, largely in north-western Argentina. This model is exemplified by the creation of the Aconquija National Park in Tucumán province, which is imposing a conservationist vision without guaranteeing the right to free, prior and informed consultation, and is having a significant impact on the Diaguita Nation. This was discussed, among other places, at the XIX International Congress on Regional Integration, Borders and Globalization in the Americas in November 2023, held at the University of Chilecito, in La Rioja province.[1]
A review of the disputes that have arisen over Indigenous territories in the last year shows that the territorial conflict existing in the vicinity of Villa Mascardi, Río Negro province (see The Indigenous World 2023) is far from being resolved. It should be recalled that there was a violent eviction here in 2022, for which four women and their children were deprived of their freedom for almost six months. Three roundtable dialogues were held at which some preliminary agreements were reached: among them, the sacred site of the place (rewe) was recognized and access to the machi (spiritual authority) was facilitated so that they could continue their spiritual and healing practices. The relocation of the Indigenous Mapuche community of Lafken Winkul Mapu, near the site of the conflict, was also discussed. Six months after signing the agreement, however, in December 2023, the president of the National Institute for Indigenous Affairs (INAI) informed them that the agreement would not be fulfilled, citing “the outcome of the elections” and the imminent inauguration of a new president as the reason.
In short, the aforementioned examples illustrate the difficulties Indigenous communities face in enjoying their territorial rights, the State's permanent denial of their effective recognition, and a future that is predicted to become ever more conflictive.
Reaffirming rights: the law on consultation in Neuquén province
In December 2022, the legislature of Neuquén province unanimously approved the Law on Indigenous Communities’ Free, Prior and Informed Consultation (Law 3,401), in accordance with the provisions of ILO Convention 169 and the respective Declarations. This law is a replica of an Executive Decree already in force that was agreed with the Mapuche Confederation of Neuquén.
This law, the first in Argentina, is key to reorienting Indigenous Peoples’ relationship with the State and, through it, with the hydrocarbons industry. This is all the more so in a province where fracking (hydraulic fracturing that uses tonnes of chemicals and huge amounts of water, a highly polluting method) has been ongoing at the “Vaca Muerta” oilfield for a decade, causing innumerable conflicts with the Indigenous communities that inhabit the area.
This law is significant for a number of reasons. Firstly, it goes hand in hand with the provisions of the international legal instruments in force in Argentina. Secondly, it considers the Indigenous communities that inhabit Neuquén province as political subjects with whom dialogue should take place. Although this law is not limited to the issue of territory, this is undoubtedly the most noteworthy one. Thirdly, it establishes a procedure for implementing the right to consultation.
However, and here it should be pointed out that this law really deserves a more exhaustive analysis, it has two negative aspects that cannot be overlooked. On the one hand, this right can only be exercised by communities that have registered legal status in the province (art. 8), sidelining those who – for whatever reason – have not obtained this. On the other, the outcomes of the consultations are not binding. Although it contemplates including the communities' observations or suggestions, the administration is finally free to adopt the measure in question (art. 15), which greatly distorts the main objective of the law.
Despite these considerations, the enactment of this law is positive and has been seen as such by the Mapuche Confederation of Neuquén. The great challenge that remains lies in its implementation, and in monitoring how its enforcement authority (the Secretariat of Territorial Development and Environment) will activate the mechanisms envisaged in the law to ensure effective participation.
Conclusions
2023 in Argentina was marked by a remarkable inefficiency in the State’s execution of its policies. Indigenous Peoples, as recipients of certain land policies, have not been unaffected by this lack of management, and there has been evident paralysis in the demarcation and subsequent titling of Indigenous territories.
Moreover, and as a consequence of the above, territorial conflicts have worsened. In addition to the lack of response at national level, the provincial states have also demonstrated a refusal to recognize these, generating widespread protest from the Indigenous communities and a permanent source of tensions that persists to this day.
Although there are some positive actions, such as the enactment of the Law on Consultation in Neuquén province, the controversial aspects noted above have to be added to an extremely uncertain political backdrop that augurs a direct impact on Indigenous communities. A political and legal analysis of this last year shows that an absent or inoperative State is delegitimizing the government administration and, worse, undermining the Indigenous rights already achieved, placing Indigenous Peoples in a weaker situation.
And, particularly in a federal country such as Argentina, the provincial states also play a leading role in the protection of rights. They have not, however, demonstrated a vocation to guarantee them, largely because of the natural assets present in their geopolitical space and the economic value that gas, oil or lithium exploitation represents; all these natural assets are present in the territories claimed by the Indigenous communities.
Finally, it would seem logical to anticipate a proliferation of territorial disputes in the immediate future, an abandonment of the territorial survey that has existed since 2006 (albeit with scant results), and a prioritization of economic activities on Indigenous territories, which is in open contradiction with their rights.
Silvina Ramírez is a lawyer and Doctor of Law. She is a postgraduate lecturer at the Law School of the University of Buenos Aires (UBA), the University of Palermo and other Argentine and Latin American universities and a founding member of the Association of Indigenous Lawyers (AADI). Academic Adviser to the Centre of Public Policies for Socialism (CEPPAS). Member of the Board of Directors of the Institute for Comparative Studies in Criminal and Social Sciences (INECIP) and focal point in Argentina for the Latin American Network of Legal Anthropology (RELAJU).
This article is part of the 38th 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 of an Indigenous man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 in full here
Notes and references
[1] See infoterritorial.com.ar. One of the main protagonists of this discussion is the Warpe activist and academic Carina Jofré.
Tags: Land rights, Business and Human Rights , Human rights, Conservation
