CHILE IW 2019
In Chile, nine indigenous peoples are recognized by statute,1 comprised of 1,585,680 persons, they represent 9% of the country’s total population. However, in the 2017 Census, 12.8% of Chile’s population, totalling 2,158,792 people, were recognized as indigenous. These peoples and their populations are: Mapuche (1,754,147), Aymara (156,754), Diaguita (88,474), Atacameño (31,800), Quechua (27,260), Colla (16,088), Kawésqar (5,298), Rapanui (5,065), and Yámana or Yagán (131). Though mostly inhabiting urban areas, particularly the Metropolitan region (30.1%), Araucanía (19.6%) and Los Lagos (13.1%),2 as of the year 2015, 24.7% resided in rural zones.
The 1980 Constitution does not recognize indigenous peoples or their rights. The process for a new Constitution included an effort launched in 2016 for consultation, but that process is currently suspended due to a lack of political will on the part of both the executive branch and the National Congress. Indigenous peoples’ rights are regulated by Law No. 19,253 of 1993 on the “Promotion, Protection and Development of the Indigenous,” a law that does not meet the standards of international law on the rights of indigenous peoples. Law 19,253 recognized indigenous rights, but Chile has yet to recognize indigenous rights constitutionally. Some peoples, such as the Changos and Chonos, are not recognized by statute, nor are the Chilean Afro-descendent tribal peoples, whose population – though excluded as a census category – is estimated in the Arica Parinacota region alone at 8,000 persons.3
ILO Convention 169, which was ratified by the Chilean Government in 2008, and went into effect as law in Chile in September 2009.
As of 2017 the indigenous peoples had Chile’s highest rates of poverty, under-development and illiteracy. One-fourth of the Araucanía Region is Mapuche. The region has the highest poverty rate (17.2%), more than double the national average of 8.6%.
Contextualization: New government. Same old treatment.
In 2018 the conservative Sebastián Piñera became Chile’s president for a second time. Prior to taking office, his party expressed its intention to pull out of (“denounce”) ILO Convention 169. The idea was abandoned after the ILO issued a note clarifying that a denunciation would be allowable in September 2021.4
At the insistence of business associations, Piñera’s government in 2018 advocated for the passage of the Pro Investment Act (Bulletin No. 11,747-03), and the Law for Modernization of the Environmental Impact Assessment System (Bulletin No. 11952-12). Both these bills sought to eliminate regulatory obstacles, promote investment, and reduce time spend on environmental assessments and participation. Indigenous peoples, despite being affected by these bills, have not been consulted. In September 2018 the government announced the “National Ac cord for Development and Peace in Araucanía,” as well as the “2018-2026 Araucanía Promotion Plan,” which proposes constitutional recognition of indigenous peoples, a Ministry and a National Council of Indigenous Peoples, and indigenous representation quotas in the parliament. These announcements fail to take a rights approach. They also fail to consider the results of the consultation carried out in the framework of the 2017 indigenous constitutional reform process. Moreover, they weaken legal protections for indigenous lands, opening them up to the market and proposing tax incentives for investments of “all types” in Araucanía, which could lead to new natural resource extractive or infrastructure projects affecting the communities. In addition, they contemplate modernization of the police and intelligence efforts to combat “terrorism” in the country’s south.5
The inter-ethnic conflict between the state and the Mapuche people in Araucanía reached a critical point with the extrajudicial murder – at the hands of government agents – of Camilo Catrillanca, a young Mapuche member of an emblematic community in the demand for territory. That crime had an impact at a national level and increased inter-ethnic tension in Chile.
Murder of Camilo Catrillanca
On 14 November 2018 the Carabineros (the national police force) have said they received a phone call reporting the theft of privately-owned vehicles. Upon hearing this, they sent their agents to an area close to Temekuikui, in Araucanía, a Mapuche community well-known for making claims to their land. This police intervention resulted in the Carabineros fatally shooting Camilo Catrillanca to the back of his head. Catrillanca was a 25-year-old Mapuche community member and the grandson of the Longko (“Chief”) Juan Catrillanca.
A minor who was accompanying Camilo and was the key witness to the incident, was arrested and tortured.6 Government spokespersons claimed that Camilo was a dangerous criminal with a criminal record and that his death occurred in a confrontation. Yet upon investigation the court found that Camilo Catrillanca had no criminal record, and, moreover, that one of the policemen directly involved (belonging to what was called the “Jungle Command”, so named because they were trained in the Colombian rainforest) was wearing his body camera, which revealed that there was no confrontation and that the shots were fired directly against the community members.
Based on the evidence implicating the policemen, the Chief of the Carabineros, Hermes Soto, was asked to resign. (Soto, a few months earlier, had replaced Bruno Villalobos, who had resigned due to his involvement in the Operation Hurricane scandal). Ten other Carabinero generals were also asked to resign, thus triggering a major political crisis and loss of confidence in the government. Charges are currently pending against former agents of the Special Police Operations Group (GOPE) and other public officials for homicide, obstruction of the investigation, falsification of a public instrument, and breach of public duty. The Mapuche people continue to seek justice.
Criminalization of indigenous protest
In 2018 the “Hurricane” police intelligence operation resumed. Under the operation, which started in September 2017, several Mapuche leaders were arrested, charged with terrorist conspiracy to commit a series of crimes, and held in pre-trial detention.
The “Hurricane” operation invoked the Anti-Terrorism Act and the Law on the Government’s Intelligence System and used telephone wiretaps later declared illegal by the Supreme Court. The operation also used a bogus computer program, “Antorcha”, developed by a private party at the request of the Carabineros Intelligence Unit. The investigation revealed an adulteration and intentional planting of evidence aimed at incriminating innocent community members.7 These practices were violations of due process, and it was ordered that the persons charged be released. A criminal investigation was brought against the police officers and supervisory personnel involved. They were charged with conspiracy, falsification of a public instrument, and obstruction of justice. Several of them resigned or were discharged.
Nonetheless, during 2018 the Anti-Terrorism Act continued to be used against members of the Mapuche people, especially against leaders and traditional authorities. In last year’s report, we mentioned the Werner Luchsinger/Vivianne Mackay case, related to the death in 2013 of this farming couple in Araucanía. Eleven Mapuche community members were charged in that case, including the Machi Francisca Linconao, a traditional spiritual authority, and brothers José and Luis Tralcal, defenders of ancestral lands and waters. Several of them were held in pre-trial detention for a long period of time.8 They were acquitted by the trial court, but the accusing party appealed the verdict, and the Temuco Appellate Court voided the trial. At the new trial the Tralcal Coche brothers were sentenced to life imprisonment for the crime of terrorist arson resulting in death. In addition, José Peralino Huinca, an informant who suffers from an advanced degree of cognitive disability, was tortured and offered illegitimate benefits to implicate the brothers. He was also found guilty.
In response to the guilty verdict and irregularities in the proceedings, the defense counsel filed an appeal for vacating the judgment with the Supreme Court. The appeal struck the terrorist nature of the crime, and lowered the sentences to 18 years for the Tralcal brothers (who are fugitives) and five years with supervised release for Peralino Huinca. The other eight community members, including Machi Linconao, were acquitted.
It should be noted that due to the violations of rights during the case and the accused’s pre-trial incarceration, in February 2018 a second Judiciary Observation Mission was conducted by the Observatory for the Protection of Human Rights Defenders, a joint program of the International Federation for Human Rights (FIDH) and the World Organization against Torture (OMCT). The Mission reiterated the 2017 observations “regarding the problems identified with respect to the architecture of the Chilean criminal justice system, application of the Anti-Terrorism Act, the intelligence activities, and the pattern of criminalization of the Mapuche people.” The mission recommended that everyone charged in this case be acquitted; that international human rights obligations be honored; and that Chile should comply with the 2014 judgement of the Inter-American Court of Human Rights (IHR Court) in the case of Norín Catrimán et al. v. Chile where Chile was found to have violated rights guaranteed in the American Convention due to its use of the Anti-Terrorism Act.
In 2018, Longko Juana Calfunao, a Mapuche leader who has been arrested on numerous occasions in the context of social protest, was tried. In July 2018 the Temuco Criminal Court found her guilty and sentenced her to five years and one day of imprisonment for the crime of assaulting a Carabinero, resulting in severe bodily injuries. This crime supposedly took place during a 2016 incident where she protested construction of an asphalt road being built across her community. In October 2018 the trial was voided by the Temuco Appellate Court, which ordered a new trial, given that in 2015 the Inter-American Commission on Human Rights (IACHR Commission) had decreed a precautionary measure in Juana Calfunao’s favor, ordering that her physical integrity be protected. The Supreme Court had also ruled in favor of Calfunao in a protection action brought by the National Human Rights Institute (INDH). There, the Supreme Court recognized that during the incident officials of the state reportedly violated the IACHR precautionary measure by forcibly entering her territory with machinery and with the execution of works.
Another 2018 case is that of the Pai-Ote community of the Colla people, who inhabit the Cordillera sector of the Atacama Region. Its members and its leader, Ercilia Araya, have been physically threatened over conflicts in their territory with gold, silver and now lithium mining companies, affecting pasture grounds, meadows and wetlands used by the community to raise their livestock. After the community denounced the Canadian company Yámana Gold for environmental damage in 2014, the police, rather than investigating the environmental issue, brought an investigation against Ercilia based on having found archeological remains and fossils at her home. She was prosecuted for several months on charges of violating the National Monuments Act, even though this was her own heritage, protected for indigenous peoples under international law. The United Nations Special Rapporteur on the situation of human rights defenders in May 2018 was notified to request protection for the community and its leader.
Attorneys who defend indigenous peoples have likewise been criminalized, harassed and threatened, and have been victims of wiretapping – later declared illegal by the courts. During “Operation Hurricane” in 2018 Karina Riquelme was harassed by civil officers of the Carabineros. She was photographed by intelligence agents – even inside the courts. One night in her own home, in the presence of her 6-year-old daughter, two unknown suspects pointed a laser light at their window. Such intimidation against Attorney Riquelme and the CIDSUR team to which she belongs are nothing new, but date back to 2011. They have had to file constitutional actions, granted in their favour, to help protect their rights and physical integrity. These incidents evidence the precarious situation of defenders of indigenous peoples’ rights in Chile.
Access to justice
Ximena Saldivia was one of the three judges of the Temuco Criminal Court that heard the second trial of the above-mentioned Luchsinger-Mackay case. In May 2018, a few days after the verdict, she filed a complaint over labour harassment and the excessive pressure she was subjected to by Judge Germán Varas Cicarelli. He presided over the case, because Saldiva was deemed to be more receptive to the Mapuche defense arguments over the course of the trial.
Judge Varas Cicarelli was seeking an appointment by the Executive Branch,9 and President Piñera and his ministers, during the trial, had stated that the defendants should be found guilty of crimes of terrorism. Judge Saldivia was replaced by Mauricio Poblete, who advocated a guilty verdict for the Mapuche community members. This situation was reported to the United Nations Special Rapporteur on the independence of judges and lawyers.10
Difficulties in access to justice were also seen in the case of the death of environmental activist Macarena Valdés Muñoz, who was the life partner of a Mapuche community member. In August 2016, during a conflict with the Austrian/Chilean company RP Global Chile Energías Renovables S.A. that develops hydroelectric projects in the Panguipulli community, Los Ríos Region, her lifeless body was found inside her home in the Newen Community of Tranguil, under suspicious circumstances. A second autopsy concluded that she died at the hands of third persons, ruling out the official version of a suicide. More than two years after the fact, without substantial progress in an investigation of suspects, Macarena Valdés’ life partner, community member Rubén Collío, indicates that he is being harassed in connection with the activities of the company, which is constantly forcibly entering the territory.
Francisco Facundo Jones Huala, a member of Mapuche Ancestral Resistance (RAM) and a Mapuche-Argentine Longko of Lof de Resistencia in Cushamen, was given a nine-year sentence in 2018. This verdict met with discontent. In September 2018, Argentine found Jones Huala as a fugitive and extradited him to Chile. There he was charged with arson and illegal possession of weapons, which allegedly occurred in Río Bueno in January 2013. He had been arrested in Chile a few weeks after the incident, when staying overnight at the home of Machi Millaray Huichalaf, a traditional spiritual authority convicted in 2014 as an accessory after-the-fact for the same fire. After spending 200 days in pre-trial detention, Machi Millaray Huichalaf was sentenced to 61 days of incarceration. Subsequently, Jones Huala fled to Argentina. A challenge against his conviction has been filed on the grounds of lack of evidence, seeking to void the guilty verdict.
Said case contrasts with Carabinero Second Sergeant Cristián Riveras Silva’s three-year sentence of restricted release for the severe battery of Brandon Hernández Huentecol, a 17-year-old Mapuche shot from 30 centimetres away. Brandon received over 200 wounds from a shotgun that perforated his hip and fractured his pelvis in 2016 when he tried to defend his brother from an arbitrary arrest in the community of Collipulli. After more than fifteen surgeries, he still has shotgun pellets in his body. The meager sentence for the Carabineros officer reveals the continuing, biased impunity for police involved in these types of crimes. In fact, in prior cases of murders of Mapuches committed by the Carabineros, such as that of Alex Lemún,11 Matías Catrileo and Jaime Mendoza Collío, the perpetrators have at most been sentenced to restricted release.
A report from Observatorio Ciudadano and the Unified Workers Federation (CUT),12 ten years after implementation of ILO Convention 169 in Chile, described the grave situation of land grabbing of Mapuche lands by forestry companies. It is estimated that these companies are holding almost three million hectares in territory traditionally occupied by the Mapuche, in contrast to less than a million hectares for which the Mapuche have gained recognition.
The indigenous lands policy developed since 1993 through the National Indigenous Development Corporation (CONADI) has been plagued by many problems. The Indigenous Act contemplated a term of three years for regularizing ancestral territories. This term has been grossly exceeded and there are demarcations that have yet to be started. The CONADI report states that between 2009 and 2018, in total, approximately 125,000 hectares, mostly in Mapuche territory, have been acquired through the Indigenous Lands Fund. These lands have been purchased at market prices, and have been limited, in the case of the Mapuche, to lands which they used to own legally. They did not receive restitution for the non-recognized, but traditionally occupied land. Furthermore, the government’s investment in this Fund from 2009 to 2018 is 0.1615% of the national budget, far less than what is earmarked for the Armed Forces, averaging 2.6998%. With regard to the purchasing of the contested lands of the Mapuche communities, only 14% of the budget has been allocated to lands adjacent to those to which the Mapuche already held title; the remaining 86% of the budget has been allocated towards lands far away from the Mapuche, requiring their relocation.
In October 2018 the Civil Court Number One of Antofagasta issued an order to the Chilean treasury. The treasury was ordered to transfer the property of Lagunas Cejar and La Piedra, after the communities of the Lickanantay people, in San Pedro de Atacama, provided proof of their ancestral use and occupation of that zone dating back to Pre-Colombian times.13 Anthropological studies and declarations of witnesses belonging to the Atacameña Community of Solor, successfully demonstrated that their rights to the land in total accounted for 4,389.76 hectares.
The government intention to amend Law 19,253 threatens the protection of currently held indigenous lands and the restitution of lands taken from them. The amendment opens the way for their alienation and encumbrance, which up until now has been prohibited.
Notes and references
- Indigenous Act No. 19,253 of
- National Socio-Economic Characterization Survey (CASEN) Database
- INE (2014). First Census for Characterization of the Afro-Descendent Population if the Arica and Parinacota Region. Available at: http://bit.ly/2IJdHD9
- ILO (2018). Technical The denunciation system of Convention 169. Available at: http://bit.ly/2IKuBBr
- Observatorio Ciudadano, September 2018. Available at: http://bit.ly/2IJMmRo
- In response to this incident, Observatorio Ciudadano, on 28 November 2018, requested that the IAHRC issue a precautionary measure in its favor, which is currently being
- In said regard, see the journalism report written by CIPER Chile (Journalistic Research and Information Center). Available at: http://bit.ly/2IMCS7Q
- This situation was documented in 2016 through an urgent call submitted to Victoria Tauli-Corpuz, Special Rapporteur on the rights of indigenous peoples, aimed at exposing the prosecution and incarceration of Machi Linconao.
- See Acuerdo no 224-2015, available at: http://bit.ly/2ITTdYe ; Going to press, Available at: http://bit.ly/2IJX0HO
- See Observatorio Ciudadano, “Comunicación urgente a Relator Especial de la ONU sobre independencia de los magistrados y abogados, caso Jueza Ximena Saldivia (mayo 2018),” available at: http://bit.ly/2IMpm43
- The exception is the case of Alex Lemún. The Carabinero involved, upon a decision by the Supreme Court to reopen the 2017 case, was formally charged in October 2018 as the perpetrator of a homicide. He is being held in pre-trial custody.
- See Observatorio Ciudadano, “El Convenio 169 De La Oit Sobre Pueblos Indígenas Y Tribales A 10 Años De Su Ratificación Por El Estado De Chile: Análisis Crítico De Su Cumplimiento,” available at: http://bit.ly/2IXKfcT
- See Diario y Radio U Chile, “Juzgado ordena al Fisco transferir propiedad de Laguna Cejar a comunidad atacameña,” available at: http://bit.ly/2IKuZQp