Indigenous World 2020: Chile

Written on 11 May 2020. Posted in Chile

Since the 2017 census,¹ and despite constant increases in numbers since the 1990s, the Indigenous population has not shown any great changes. When considering their demographic for public policy and regulatory purposes, they are still given as 12.8%  of the total population, or approximately 2,158,792 individuals, with the Mapuche being the most numerous among them (some 1,800,000 people). A clear increase in the urban Indigenous population can be seen at the expense of the rural population, with 87.8% now living in urban areas as opposed to 12.2% in rural.²

Law 19,253 of 1993 on Indigenous Promotion, Protection and Development, or the “Indigenous Law”, has still not been amended despite requiring reform to bring it into line with current international standards on Indigenous Peoples’ rights, such as ILO Convention 169, ratified by Chile in 2008. Chile also voted in favour of the 2007 UN Declaration on the Rights of Indigenous People and the 2016 American Declaration on the Rights of Indigenous People.

A constitutional reform process commenced in 2016 and 20173 under the government of then President Bachelet, and one element of this was to be Indigenous Peoples’ consultation. This process has stalled under the current government (President Piñera 2018-2020) and so there has thus far been no constitutional reform with regard to Indigenous issues. Following the social protests that shook the country in October 2019, demanding in-depth institutional change, a new opportunity has opened up by which to include Indigenous Peoples and their rights in the country’s constitution. This will be discussed further on in this section.

Piñera’s attempts to relax protections over Indigenous lands

At the start of 2019, the Piñera government announced that, subject to consultation with Indigenous Peoples, it intended to introduce a series of reforms into the 1993 Indigenous Law laying down measures with regard to issues initially contained in Exempt Resolution 241 of the Ministry of Social Development (MIDESOC) dated 3 April.

The aim of the measures, first announced by the President in 2018 in the “National Agreement for Development and Peace in La Araucanía”, was to relax protections over Indigenous lands, thus promoting their division, alienation and leasing while establishing alternative compensation mechanisms to the land purchase mechanisms set out in the law. The reforms thus meant it would be possible for communities to receive sub-divided lands with individual titles, and that those for which they already held title could be totally or partially divided. The reforms would also reduce the term of the ban on alienating Indigenous Peoples’ lands when acquired by the state from 25 to 5 years and make the leasing of both individual and community Indigenous lands possible for up to 25 years. Under the current law, such lands can only be leased for a maximum of five years in the first case, and not at all in the second. Finally, they would establish alternative compensation mechanisms to “resolve the land problems” […] “delivering all or part of the land claimed through alternative benefits”.⁴

These reforms further introduced changes to the structure of Indigenous organisation, amending the rules for establishing new Indigenous communities, increasing the minimum number of adults required for their formation, and reducing the number of people required to form Indigenous associations from 25 to 2. These latter would also now be included as beneficiaries of the Indigenous Development Fund. The measures proposed were in clear contravention of international law applicable to Indigenous Peoples, recognised through international instruments ratified and/or acceded to by Chile. In fact, both ILO Convention 169 and the UN Declaration on the Rights of Indigenous Peoples, as well as the case law of the Inter-American Human Rights System, recognise the collective nature of Indigenous lands, granting them protection in order to avoid the possibility of expropriation by non-indigenous third parties. They also recognise the Indigenous Peoples’ own institutions, and access to land or development programmes cannot therefore be conditional upon establishing the structures set out in state law.

Given the threat these reforms would represent to the integrity of their lands, which would end up at the mercy of the market, Indigenous Peoples were fiercely opposed to all of the above. Their opposition became clear when the government tried to implement a consultation process in this regard. Different Indigenous Peoples, particularly the Mapuche, protested at the way the consultation was being implemented, and refused to participate in the process meaning that, some months later, the consultation was first suspended by the government and then later declared at an end, along with the proposed legal reforms.⁵

Conflicts with extractive industries and criminalisation

In Mapuche territory to the south of the country, the state is continuing to promote investment projects on lands and territories legally owned and traditionally occupied by Indigenous people. These are mostly hydroelectric and salmon farming projects that are resulting in serious social and environmental impacts. They are being approved without first obtaining the consent of the Indigenous communities and organisations affected. To this must be added the presence of the forestry industry, 2,000,000 hectares of which lies on the Mapuche’s ancestral territory, with serious environmental impacts affecting the water and biodiversity, and triggering Mapuche protests.

The state’s response to the Mapuche protests has remained a disproportionate use of force and the criminalisation of those claiming their rights. One emblematic case in this regard was that of the Mapuche leader, lonko (chief) Alberto Curamil, a traditional leader who has maintained a constant struggle to defend his people’s territory from the threat of hydroelectric projects. As a result of this struggle, he suffered disproportionate police violence in 2014 and then, in 2019, was prosecuted together with three other Mapuche leaders for allegedly participating in an attack on a financial organisation. At the end of the trial, lonko Curamil and werken (leader) Álvaro Millalén were acquitted because their involvement in the alleged crime could not be proved. The other two Mapuche defendants, however, were given harsh sentences (20 years) despite no credible proof of their participation in the crime. In terms of the socio-environmental conflicts caused by the mining industry that is affecting Indigenous Peoples in the north of the country, a ruling from the First Environmental Court of Antofagasta at the end of 2019⁶  partially accepted the complaints made by the Atacameño communities of Peine and Camar and the Council of Atacameño Peoples with regard to a Compliance Programme (PdC) presented by the lithium company “Soquimich” (SQM Salar S.A.), and previously approved by the Environmental Superintendence (SMA) in the context of an environmental sanctions procedure.⁷ This meant that the SMA was able to confirm a breach of the environmental resolution authorising the operations, as well as the extraction of brine above the permitted amount between 2013 and 2015, i.e. to a volume of almost 4 million cubic metres.

The Environmental Court felt that  there  was  scientific  certainty with regard to the impacts on the water resources of the Salar de Atacama salt flats and, in line with the precautionary principle of environmental law, decided to dismiss the PdC since it did not comply with the principles of efficacy and integrity required by legislation. Notwithstanding the above, however, the Court set aside the need for an Indigenous consultation on the PdC, given the nature of the procedure, despite being an administrative measure that could have a significant impact on the Licanantai people since it approved transitory measures – such as the PdC – within their territory of ancestral use and occupation, and which would also have an impact on their natural resources, in particular, water (puri, in the Kunza language).

Despite the water resources of the Salar de Atacama basin having been declared saturated, the judgment was appealed by the company and will be reviewed by the Supreme Court in 2020.

Indigenous participation in COP 25-Madrid

The demonstrations that arose in Chile after 18 October 2019 led the government to cancel the COP 25 meeting in the country⁸ just one month before it was due to take place. It was subsequently decided to transfer it to Madrid. This decision was widely criticised by civil society⁹ because the increased costs this would involve meant that fewer Indigenous Peoples’ representatives – who had been organising for maximum impact at this meeting – would be able to participate.

From the Indigenous autonomous groups, Ximena Painequeo, representative of the Lakquenche Territorial Identity; David Alday, president of the Yagán de Bahía Mejillones community, and Sergio Cubillos, president of the Atacameño Peoples’ Council (CPA) managed to attend COP 25 in Spain, including the activities of the Indigenous Peoples International Forum (Indigenous Caucus) and the parallel spaces of the Minga Indígena and Social Climate Summit.¹⁰ In the “green zone”, which was part of the official COP space, they ran two activities: one by the CPA on lithium extraction in the Salar de Atacama and another run jointly by the three peoples focusing on the impact of the extractive industry (mining, forestry and fish farming) on their ancestral territories.

It should be noted that, some weeks prior to the COP, the government and the United Nations system called for the formation of a Chilean Indigenous Caucus, which, supported by both, allowed a group of Indigenous representatives, both men and women, to be present at the occasion in Spain. Both the Indigenous representatives mentioned above and the Chilean Indigenous Caucus agreed at that event that the State of Chile have not given an effective response in the fight against climate change and in the recognition of the rights of Indigenous Peoples.

Role of Indigenous women in the Indigenous movement

In the last census in 2017, 12.4% of women in Chile self-identified as Indigenous,¹¹ i.e. belonging to one of the nine Indigenous Peoples recognised by the Indigenous Law. This significant percentage of women has been key to the social, political and cultural development of the different Indigenous Peoples living in Chile. However, gaps remain in their status and in the implementation of their rights in relation to Indigenous men and non-indigenous women.¹²

In recent decades, Mapuche women have hence been organising and sharing their critical views and personal experiences of the need for an agenda that highlights the role of Indigenous women in issues ranging from health, education, access to justice, territory, environment, participation and productive development, etc. They have noted that, historically, Indigenous proposals and demands have revolved around the Indigenous identity generally without considering the nuances of gender differences within Indigenous Peoples. As part of these debates and critical positions, it has also been emphasised that “there can be no Mapuche autonomy or self-determination of the people without the well-being of all women that make up the people”.¹³

The Indigenous Peoples were present in the social protests that arose following 18 October 2019 and the subsequent debate on the drafting of a new constitution by a constituent assembly, indicating that their struggle and their challenging of the state predated the protests due to the dispossession of their territories and the ongoing criminalisation and repression they face.

Indigenous women and youth were also present in the protests. The women highlighted that the government’s extractivist policy was also a form of violence that they were forced to suffer on a daily basis as it affects not only their territories but also their way of life given that they are the ones who pass on their culture and traditions to new generations: protecting the environment, protecting their medicinal plants, food sovereignty and sites of cultural significance.¹⁴

Against this backdrop of social protest, the Mapuche women have been mobilising within their Indigenous organisations and institutions to fight the dispossession of their territories, defend their water, revive their languages and disseminate their knowledge of how to protect the environment. They have also established alliances with other sectors of Chilean society in order to position and raise their voices in protest at the Chilean state and its “patriarchal and neoliberal” policies. They are clear that to move towards good living (“buen vivir”) the current system governing them has to change.¹⁵

Prospects for 2020

The new context created by the social and popular outpouring that took place in October 2019, the origins of which can be found in political and social inequalities and in the exclusion of many sectors, including Indigenous Peoples, has opened up the prospect of a transformation in relations between the peoples and the state.

In fact, these protests resulted in an “Agreement for Social Peace and a New Constitution” being signed in November that undertakes to hold a referendum to determine whether to commence a new constitutional process and, if so, what kind of constituent body should be responsible for this (totally elected by the people or combined with representatives from Congress). While this agreement failed to refer to Indigenous Peoples’ involvement in the constituent body that would be created should the referendum agree to a new constitution, a legislative bill referring to native peoples’ involvement in this body was approved by the Chamber of Deputies in December without, however, establishing either the number of their representatives or a specific mechanism.

Notwithstanding the uncertainty as to whether it will pass through the Senate or not, the draft bill of law on Indigenous Peoples’ participation still contains some significant unknowns, in particular with regard to the constituency that would participate in the election of the Indigenous constituent members. One option consistent with international law would be to use the criterion of self-identification to determine indigeneity, as established in ILO Convention 169. As indicated in this yearbook, the Indigenous population totals 2.2 million, or 12.8% of the total population of the country (INE, 2018).¹⁶ Proposals thus far, however, in particular those coming from the government political parties, have suggested that the register of Indigenous Peoples held by the National Indigenous Development Corporation (CONADI) should be taken as the electoral base, which is far more limited in number and questionable from the point of view of the C169 standard.

There are different views within the various Indigenous Peoples in regard to the constituent process. Some movements, in particular Mapuche, such as the Arauco Malleco Coordinating Body and the All Lands Council, are opposed to Mapuche participation in it at all, instead preferring to focus on land recovery and self-determination via their own paths.¹⁷ Others, such as the Association of Municipalities with Mapuche Mayors and the Atacameño Peoples’ Council, have actively participated in the parliamentary debate for Indigenous inclusion in the constituent body, seeing this process as a possible opportunity for advancing towards recognition of the plurinationality and collective rights of their peoples.¹⁸

Report from the Citizens’ Observatory of Chile (www.observatorio.cl) with contributions from Paulina Acevedo, José Aylwin, Marcel Didier, Hernando Silva and Karina Vargas.

This article is part of the 34^th 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

1. National Statistics Institute (2018). Síntesis de resultados Censo Available at https://www.censo2017.cl/descargas/home/sintesis-de-resultados- censo2017.pdf
2. Ibid
3. See IWGIA Indigenous World 2017 and 2018, Chapter on Chile
4. Ministry of Social Development and Available at: http:// consultaindigena2019.gob.cl/medidas
5. Albert, C. “Los errores que liquidaron la consulta indígena: ‘Es una instrumentalización de la pobreza’”, in CIPER 7 August Available at https://ciperchile.cl/2019/08/07/los-errores-que-liquidaron-la-consulta- indigena-es-una-instrumentalizacion-de-la-pobreza/
6. See Causa Rol R-17-2019 (cumulatively R-18-2019 and R-19-2019), First Environmental Court of Antofagasta: https://causas.1ta.cl/causes/38/ expedient/2614/books/31/?attachmentId=4721.
7. See environmental sanctions procedure, F-041-2016, of the Environmental Superintendence. Available at: http://snifa.sma.gob.cl/v2/Sancionatorio/ Ficha/1459
8. Reyes, C. “Chile ya no será anfitrión: Presidente Piñera anuncia suspensión de cumbre Apec y COP25”. La Tercera, 30 October 2019: https://www.latercera. com/politica/noticia/presidente-pinera-informa-chile-ya-no-realizara-la-apec- la-cop-25/883655/
9. Pronouncement on parallel spaces following the suspension of COP 25: https://www.porlaaccionclimatica.cl/declaracion-publica-de-la-sociedad- civil-por-la-accion-climatica-sobre-la-no-realizacion-de-cop-25/; https://forosociedadcivilcop25.cl/#/news/1; https://www.facebook.com/ cumbrepueblos19/videos/665917917270296/
10. Intervention by Ximena Painequeo, Social Summit for Climate: https://www.youtube.com/watch?v=y57baUO97eY
11. 2017 Census, INE Chile. https://historico-amu.ine.cl/genero/files/estadisticas/ pdf/documentos/radiografia-de-genero-pueblos-originarios-chile2017.pdf
12. For example: Indigenous women have an average of 10 years of schooling as opposed to non-indigenous women who have 9 years. Casen Survey 2015.
13. ¿Es que acaso debemos ser todas feministas? Reflexiones de mujeres Mapuche para un debate. Cañet, Isabel and Painemal, https://www. mapuexpress.org/2018/03/02/es-que-acaso-debemos-ser-todas-feministas- reflexiones-de-mujeres-mapuche-para-un-debate/.
14. Painemal, M. “Mujeres Mapuche y sus luchas por un buen vivir para todos y todas.” Le Monde Diplomatique Edición Chilena. 9 January 2020: https://www. org/2018/03/02/%C2%BFes-que-acaso-debemos-ser-todas- feministas-reflexiones-de-mujeres-mapuche-para-un-debate/
15. Ibid
16. National Statistics Institute (2018).
17. See Pairacan, (2019). “Estado plurinacional: el debate mapuche actual”. Available at: https://ciperchile.cl/2019/12/20/estado-plurinacional-el-debate- mapuche-actual/ Asociacion De Municipalidades con Alcalde Mapuche Comunicaciones Municipalidad de Tirúa “Escaños para Pueblos Originarios en la Constituyente Aprobó Cámara de Diputados”. 20 December 2019: https://www.amcam. cl/post/esca%C3%B1os-para-pueblos-originarios-en-la-constituyente- aprob%C3%B3-c%C3%A1mara-de-diputados

Tags: Land rights, Women, Business and Human Rights , Biodiversity, Criminalisation