The Indigenous World 2022: Chile
Despite steadily increasing since the 1990s, Chile’s Indigenous population has not seen any major variations since the 2017 census. 2,185,792 people self-identify as Indigenous, which is equivalent to 12.8% of the country's total population (17,076,076). The Mapuche are the most numerous (almost 1,800,000 individuals), followed by the Aymara (156,000) and the Diaguita (88,000).[i] Trends highlight the sustained increase in the urban Indigenous population, with 87.8% of Indigenous people now living in towns and cities compared to 12.2% in rural areas.[ii]
Law 19,253 of 1993 on the Promotion, Protection and Development of Indigenous Peoples, or “Indigenous Law”, has not been amended despite urgent reform needed to bring it into line with current international standards on the rights of Indigenous Peoples, such as ILO Convention 169, ratified by Chile in 2008. Chile has also adopted the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the 2016 American Declaration on the Rights of Indigenous Peoples.
Social protests broke out in the country in October 2019 demanding far-reaching institutional reform and this led to a referendum in October 2020 that approved the drafting of a new constitution. A new constitutional text is currently being debated by a Constitutional Assembly which includes the representation, by means of reserved seats, of all legally recognised peoples in Chile.
The role and contribution of Indigenous women
Indigenous women in Chile play a fundamental role in the social, political and cultural development of their peoples and nations, whether through their role in transmitting their traditional knowledge, through the revival of their language, their contribution to food sovereignty and care of seeds, or their fight to combat climate change through their traditional knowledge of the management and conservation of common property. This is in addition to the role they have been playing in the current pandemic where they are contributing their knowledge of health and use of medicinal plants, and also helping to activate networks for bartering and solidarity exchanges of their products.
They also play an important role as defenders of the territory and environment. Ercilia Araya, for example, a Colla leader who has been criminalised and harassed for defending the rights of her community against the environmental damage caused by several Canadian mining companies in the Atacama region,[iii] managed to get an auction for a lithium concession suspended in January 2022 by means of judicial appeal, citing that it was affecting her community's territory and had been conducted without a consultation process.[iv] And also Machi Millaray, a Mapuche spiritual leader who has been fighting to protect the Pilmaiquén River, closely linked to the Ngen Mapu Kintuante Natural Ceremonial Complex located in the rural sector of Maihue-Caramallín, Los Lagos and Los Ríos regions, which is threatened with the construction of two hydroelectric projects (Osorno and Los Lagos) authorised without a consultation process and without obtaining the consent of the affected communities.[v] In December 2021, Millaray was instrumental in getting the Supreme Court to order the National Monuments Council to conduct an Indigenous consultation process for the installation of the Statkraft hydroelectric plant[vi] and, in January 2022, by means of another judicial appeal, to order National Cooperation for Indigenous Development (CONADI) to resolve the land claim on the Natural Ceremonial Complex filed by the affected communities.[vii]
Indigenous women are also actively participating in the political lives of their territories, communities, organisations and in national politics, where they are increasingly present denouncing the dispossession of their territories, defending water and common goods, and denouncing the extractive, neoliberal and patriarchal policies of the State. One example of this was their significant presence in the social protests following the social outburst of 18 October 2019 and the subsequent debate around the drafting of a new constitution through a Constitutional Assembly, where they pointed out that the government’s extractive policies are also a form of violence that they are forced to endure on a daily basis. These policies affect not only their territories but also their ways of life as they are the ones responsible for transmitting culture and traditions to new generations, such as caring for nature, protecting medicinal plants, food sovereignty and sites of cultural significance.[viii]
In this context, the role of Indigenous women is beginning to take on real importance, not only because of the historic fact that out of the 17 seats reserved for Indigenous representatives in the Constitutional Assembly nine are held by Indigenous women but also because a Mapuche woman, Dr. Elisa Loncón, was elected to preside over the Assembly. The participation and contributions of Indigenous women are continuing to be fundamental to the work of the Constitutional Assembly, as can be seen from the various “draft norms on Indigenous Peoples” that have been submitted by different Indigenous women's collectives seeking to guarantee their rights in the new fundamental charter. These include: the right to live a life free from violence, requiring that the State prevent, punish, repair and eradicate all types of violence against Indigenous women, especially those that are the product of structural inequality; guarantees of an Indigenous education with an anti-racist approach, which will allow for education in a free, healthy and violence-free space; Indigenous women’s right to participation, guaranteeing criteria of representativeness and parity to ensure the effective participation of Indigenous women in political positions and within their communities; the creation of Indigenous courts with a gender perspective; guarantees of the sexual and reproductive rights of Indigenous persons in accordance with the customs of each people; recognition and promotion of food production, along with food distribution and consumption, etc.
Despite these vital contributions, however, Indigenous women face the greatest social inequalities and gender gaps in the country, largely due to the intersection of their being women and Indigenous. This can be seen, for example, in their greater barriers to accessing justice, education and quality health care. They also face greater discrimination and violence, manifested (among other ways) in income and multidimensional poverty rates that are close to 18% and 30%, respectively, compared to 11% and 20% for non-Indigenous women. [ix] And this is not to mention the vulnerability of Indigenous women: the high percentage of Indigenous female-headed households is close to 44%.[x] In many cases this is due to the migration of their partners, who are forced to leave the family home to find work elsewhere, with the consequent overload of responsibilities for the women who are left alone in charge of the house, the children, the farm and the animals.
This situation is exacerbated by gender inequalities that affect both Indigenous and non-Indigenous women, such as low labour participation rates. In rural areas, the employment rate is only 32.1% for women, compared to a 64.7% for men.[xi] Furthermore, when rural Indigenous women are able to access work, there is a far greater likelihood that it will be informal, unstable or low paid, given that their main income derives from activities related to agriculture and trade. In addition, violence against women still exists and affects relationships of a complementary nature between the genders. Finally, they are the ones who take on most of the caregiving and parenting tasks.
This is why Indigenous women are increasingly raising their voices and making known their contributions, problems and realities. The current process of constitution drafting is an opportunity to overcome the gaps they face and guarantee their rights and the rights of their peoples, as well as to contribute more generally to the construction of a new country because progress towards a good life for all is inconceivable without the well-being of all women.
Indigenous Peoples in the constitutional process
The social uprising of October 2019, along with challenges to the persistence of the dictatorship’s constitutional institutions and the exclusions and inequities to which they gave rise, called into question the model of the State's historical relationship with the native peoples. The peoples thus demanded the reconfiguration of Chile as a plurinational and intercultural State, including recognition of the collective rights of native peoples, especially the right to territory and self-determination.
As a result of the native peoples’ coordination, they managed to get 17 of the 155 Constitutional Assembly seats elected in May 2021 reserved for Indigenous Peoples: seven for the Mapuche, two for the Aymara, and one for each of the other peoples recognised by law. The application of gender parity rules meant that the Indigenous Peoples were represented by nine women and eight men. Although this is an under-representation of the Indigenous demographic (12.8% of the total population), in addition to which the Afro-descendant people –recognised by law in 2020– were not included, it was still an historic milestone: it will be the first time that the country’s Indigenous Peoples have participated, alongside the rest of the Chilean population, in the drafting of a fundamental charter to establish new bases for interethnic and intercultural coexistence.
The Constitutional Assembly was established on 4 July and a Mapuche Assembly member, Elisa Loncón, was elected from among her peers to be president of this body, demonstrating the leading role of the Indigenous Peoples in the constitutional process.
Since the start of the Constitutional Assembly’s work, issues related to the rights of Indigenous Peoples have gained great relevance, both in the formal and the substantive spheres. In the former, a Provisional Committee on Indigenous Participation and Consultation was set up to produce regulatory proposals for the participation and consultation of Indigenous Peoples in the process.[xii] This resulted in the production of a Regulation on the subject,[xiii] Article 2 of which aims to “establish relevant, permanent, binding and continuous mechanisms for Indigenous participation and consultation, allowing Indigenous Peoples and nations pre-existing the State to submit proposals, recommendations and establish agreements to be discussed in the deliberative stage of the constitutional process.” The Regulation explicitly includes the Indigenous Peoples’ own or customary law as normative sources for this task, along with the United Nations Declaration on the Rights of Indigenous Peoples, ILO Convention No. 169 and other international instruments. It also incorporates the jurisprudence of the Inter-American Court of Human Rights, the observations and recommendations of the Human Rights Treaty Committees and the UN Special Rapporteurs on human rights, and the recommendations of the Inter-American Commission on Human Rights (Article 7).
This same Regulation envisages holding an Indigenous constitutional consultation, along with various participative bodies such as the “initiative for native peoples’ norms”, in order to allow Indigenous organisations to generate proposals for constitutional texts to be debated by the Constitutional Assembly. To ensure implementation of this participation and consultation process, a Committee on the Rights of Indigenous Peoples and Plurinationality has been established. One of the main problems facing this Committee in terms of implementing the Indigenous consultation process is the limited timeframe in which the Constitutional Assembly is operating generally, which allows only two months in which to conduct this. This is in addition to the limited budget envisaged for this purpose.
In terms of substance, it is worth noting the inclusion of Indigenous Peoples and their rights in the General Rules of Procedure of the Constitutional Assembly. Article 1 thus defines the Assembly as “a representative, parity and plurinational assembly, autonomous by nature, convened by the people of Chile to exercise original constitutional power”. In addition, the rights of autonomy, territory, common property and legal pluralism of Indigenous Peoples, among others, are included in the proposals for norms being drafted by the thematic commissions of the Constitutional Assembly, each of which includes at least two representatives from Indigenous reserved seats. These representatives have also tabled a series of constitutional initiatives related to the rights of Indigenous Peoples, and 248 initiatives have been presented to the Constitutional Assembly by the Indigenous Peoples themselves, all of which will form part of the constitutional debate.[xiv] All this suggests that these rights, as well as plurinationality, will be envisaged in the constitutional text drafted by the Constitutional Assembly and to be put to a referendum in 2022.
Mining and Indigenous Peoples of the north
In April 2020, the State Defence Council sued Minera Escondida Ltd (operated by BHP Billiton) for environmental damage caused to the Punta Negra Salt Flat, Antofagasta Region, due to its 27-year-long extraction of freshwater for use in its copper production operations. The parties involved –the company, the State, the Council of Atacameño Peoples and the Atacameño Community of Peine– reached a settlement for USD 81 million, an amount intended solely to finance the 19 measures established. The agreement was approved by the First Environmental Court, putting an end to the litigation; it also established the creation of a Socio-environmental Governance Board for the Salar Sub-basin and surrounding sectors –which will be made up of all the stakeholders involved– and an environmental plan for the recovery of the ecosystem. Despite being an unprecedented agreement, some criticism has arisen regarding the feasibility and timeliness of the measures, given the severe damage already caused to aquifers and the loss of their ecosystem services.[xv]
Minera Escondida Ltd suffered another setback in 2021: the First and Second Environmental Courts resolved to put a complete ban on the extraction of fresh water despite permits previously granted for the development of the Cerro Colorado project, due to the continuing deterioration of the Huantija lagoon system and the Lagunillas wetlands (Tarapacá Region), as claimed by the affected Indigenous communities, in particular the San Isidro de Quipisca Indigenous Agricultural Association and the Aymara Indigenous Community of Cancosa.[xvi]
The lithium industry in Chile, along with the extraction of other minerals and natural resources in the north of the country, did not come to a halt because of the COVID-19 pandemic and its severe restrictions on freedom of movement, meaning that numerous infections were transmitted both within its operations and in neighbouring Indigenous communities. Moreover, some companies linked to the metal and non-metal mining sectors maintained or increased their production during the last tax year (2020-2021), on a par with pre-pandemic times. This industry has also been favoured by rising global prices (particularly for copper), and China's exponentially increasing demand for raw materials for the development of new technologies.[xvii] During October 2021, the government of President Piñera formally initiated a bidding process for the exploration and exploitation of lithium in the country's northern salt flats for a total of 400,000 tonnes. This decision generated a debate between the business sector, the government of the day, academia and Indigenous communities. It seems totally counterproductive to continue with such bids while the constitutional process is ongoing since new bases for environmental institutions, ownership of natural assets, and recovery of the lands and territories of Indigenous Peoples are being debated. The bidding process was also taking place just a few months before the inauguration of Gabriel Boric’s new government. He has included the creation of a national lithium company in his programme and intends to implement public policies in this area that deviate from those promoted by previous administrations, which were aimed at exploitation by private and foreign entities. Finally, and despite such considerations, and the staunch opposition of the affected peoples and communities, in January 2022, just two months before leaving office, the Piñera government awarded two tenders to BYD Co. Ltd. ("Build Your Dreams") (Chinese) and Servicios y Operaciones Mineras del Norte (Chilean) for 80,000 tonnes each. The process has, however, been suspended while the courts review the appeals filed.[xviii]
The salmon industry and its impact on the rights of Indigenous Peoples
The salmon industry began to develop in Chile in 1969, under a cooperation agreement with the Government of Japan. After more than 50 years of growth, and with State support, this industry has today achieved significant importance within the national economy and worldwide, representing some 30% of global production and occupying second place in world salmon production after Norway. Production is concentrated largely in Patagonia, between the regions of Los Lagos, Aysén and Magallanes, where the conditions for its development are optimal. This also happens to be an area of great biodiversity, however, both terrestrial and marine, and a territory of traditional use and occupation of the Mapuche (Lafkenche and Williche), Kawésqar and Yagán peoples. As a result, the expansion of this industry and its practices has generated a growing number of socio-environmental concerns regarding its impact on human rights.
In this context, the Informe Industria Salmonera en Chile y Derechos Humanos [Report on the Salmon Industry in Chile and Human Rights][xix] was published at the end of 2021, presenting the results of a study carried out by the National Institute of Human Rights and the Danish Institute for Human Rights. From a human rights perspective, and based on the UN Guiding Principles on Business and Human Rights, the study analyses and documents the impacts of salmon farming on the environment, local communities and workers.
Among the impacts on the rights of Indigenous Peoples, the main findings show that a series of rights enshrined in the UNDRIP and ILO Convention 169 are being violated. It notes that “there is a perception that the State and companies understand development in a very different way from Indigenous Peoples –and impose that way of understanding it– which puts Indigenous Peoples’ right to self-determination of at risk as well as their right to freely pursue their economic, social and cultural development”. In sum, the violations relate particularly to lands, territories and natural resources, with the destruction of sites of cultural and spiritual significance, a lack of consultation and participation in matters that may affect them, occupation of their territories by the salmon industry, and contamination of their resources, among other things.
In spite of the demonstrable impacts outlined in this study and the innumerable efforts of civil society organisations and the affected Indigenous Peoples to halt the advance of this industry,[xx] just a few weeks before leaving office President Piñera expedited the processing of an initiative that will create “sustainable aquaculture concessions”[xxi] and which has the “purpose of addressing the problem of interaction between aquaculture and protected areas”. If approved, it will affect Kawésqar communities in particular since, as stated in the text, in the Magallanes region: “(...) the only free space for aquaculture development is the Kawésqar National Reserve”, a protected area located on the ancestral territory of the Kawésqar people. It remains to be seen how the new government will address this issue.
Lorena Arce, José Aylwin, Marcel Didier, Hernando Silva and Karina Vargas, members of the Observatorio Ciudadano (www.observatorio.cl).
This article is part of the 36th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2022 in full here
Notes and references
[i] Instituto Nacional de Estadísticas. Síntesis resultados Censo 2017. Chile: Instituto Nacional de Estadísticas, 2018. https://www.censo2017.cl/descargas/home/sintesis-de-resultados-censo2017.pdf
[iii] Territorios Comunicaciones. “Nuevo revés judicial del gobierno en licitación del litio a transnacionales: Corte de Copiapó no acoge recursos presentados por Ministerio de Minería” [New judicial setback for the government in lithium auction to transnationals: Copiapó Court rejects appeals filed by the Ministry of Mining]. Araucaína Cuenta, 2022. https://www.araucaniacuenta.cl/nuevo-reves-judicial-del-gobierno-en-licitacion-del-litio-a-transnacionales-corte-de-copiapo-no-acoge-recursos-presentados-por-ministerio-de-mineria/
[iv] Comunicaciones OC. “Ercilia Araya: la lideresa Pai-Ote Criminalizada por luchar contra las mineras canadienses en Chile” [Ercilia Araya: Pai-Ote leader criminalised for fighting Canadian mining companies in Chile]. Observatorio Ciudadano, December 16, 2019. https://observatorio.cl/ercilia-araya-la-lideresa-pai-ote-criminalizada-por-luchar-contra-las-mineras-canadienses-en-chile/
[v] Millaray Huichalaf, Machi. “Tras 10 años de lucha: Un triunfo jurídico de las comunidades que defienden el río Pilmaiken” [After 10 years of struggle: A legal triumph for the communities defending the Pilmaiken River]. El Desconcierto, February 5, 2020. https://www.eldesconcierto.cl/opinion/2020/02/05/tras-10-anos-de-lucha-un-triunfo-juridico-de-las-comunidades-que-defienden-el-rio-pilmaiken.html
[vi] Huenchumil, Paula. “Corte Suprema ordena al Consejo de Monumentos hacer consulta indígena por instalación de hidroeléctrica de Statkraft” [Supreme Court orders the Monuments Council to carry out Indigenous consultation for Statkraft's hydroelectric installation]. Interferencia, December 9, 2021. https://interferencia.cl/articulos/corte-suprema-ordena-al-consejo-de-monumentos-hacer-consulta-indigena-por-instalacion-de
[vii] Diario Constitucional. “Falta de diligencia de la CONADI ante la solicitud de reivindicación de territorio ceremonial mapuche-williche, que una empresa transfirió a título gratuito a una sola comunidad indígena, vulnera la igualdad ante la ley, al preferir a una de las solicitantes” [Lack of diligence on the part of CONADI in the claim for the Mapuche-Williche ceremonial territory, which a company transferred free of charge to just one Indigenous community, violating equality before the law by giving preference to one of the applicants].
Diario Constitucional, January 24, 2022. https://www.diarioconstitucional.cl/2022/01/24/falta-de-diligencia-de-la-conadi-ante-la-solicitud-de-reivindicacion-de-territorio-ceremonial-mapuche-williche-que-una-empresa-transfirio-a-titulo-gratuito-a-una-sola-comunidad-indigena-vulnera-la-i/
[viii] Painemal, Millaray. “Mujeres Mapuche y sus luchas por un buen vivir para todos y todas” [Mapuche women and their struggles for a good life for all]. Le Monde Diplomatique - Èdicion Chilena, January 9, 2020. https://www.lemondediplomatique.cl/mujeres-mapuche-y-sus-luchas-por-un-buen-vivir-para-todos-y-todas-por-millaray.html
[ix] RIMISP. “Quiénes son las mujeres indígenas en Chile” [Who are the Indigenous women in Chile). RIMISP, October 31, 2017. https://www.rimisp.org/noticia/quienes-son-las-mujeres-indigenas-en-chile/
[x] Observatorio Social. “Encuesta de caracterización socioeconómica nacional – Casen 2017.”. Ministerio de Desarrollo Social y Familia, 2017. http://observatorio.ministeriodesarrollosocial.gob.cl/encuesta-casen-2017
[xii] The 69 communities and individuals who attended the 22 sessions held during the negotiation of the proposal presented their views on the importance of Indigenous participation and consultation.
[xiii] See Reglamento de Participación y Consulta Indígena here: https://www.chileconvencion.cl/wp-content/uploads/2021/10/Reglamento-definitivo-Participacio%CC%81n-y-Consulta-Indi%CC%81gena-diciembre-2021.pdf
[xiv] Plataforma Digital de Participación Popular. ”Iniciativas de Pueblos Originarios.” https://plataforma.chileconvencion.cl/m/iniciativa_indigena/
[xv] Carrere, Michelle. “Chile: ¿Es muy tarde para salvar el salar de Punta Negra?” [Chile: is it too late to save the Punta Negra salt flat?]. Mongabay, June 28, 2021. https://es.mongabay.com/2021/06/chile-salvar-el-salar-de-punta-negra/.
[xvi] Primer Tribunal Ambiental. “R-39-2020 - Asociación Indígena Agrícola San Isidro de Quipisca con Servicio de Evaluación Ambiental.” [First Environmental Court of Antofagasta]. 14 October 2020.
https://causas.1ta.cl/causes/175/expedient/3442/books/118/?attachmentId=5823, and “R-141-2017 – Jara Alarcon Luis / Servicio de Evaluacion Ambiental (Res. Ex. N° 1317, de 15 de noviembre de 2016).”
(cumulative case “R-142-2017 - Asociacion Indigena Agricola San Isidro de Quipisca / Servicio de Evaluacion Ambiental (Res. Ex. N° 1317 de 15 de noviembre de 2016)). http://2ta.lexsoft.cl/2ta/search?proc=4.
[xvii] Codelco. “Codelco genera US$ 3.675 millones de excedentes, casi diez veces más que el primer semestre del año pasado” [Codelco generates USD 3,675 million in surplus, almost ten times more than in first half of last year]. Codelco, 30 July 30, 2021. https://www.codelco.com/codelco-genera-us-3-675-millones-de-excedentes-casi-diez-veces-mas-que/prontus_codelco/2021-07-30/103606.html.
[xviii] Deutche Welle. “Justicia chilena suspende polémica licitación de litio” [Chilean court suspends controversial lithium auction]. DW, January 14, 2022. https://www.dw.com/es/justicia-chilena-suspende-pol%C3%A9mica-licitaci%C3%B3n-de-litio/a-60432446.
[xix] INDH. “Informe Industria Salmonera en Chile y Derechos Humanos.” INDH, 2021. https://bibliotecadigital.indh.cl/handle/123456789/1739
[xx] For example, a recent Supreme Court decision upheld an appeal for protection by Indigenous communities and NGOs against the relocation of salmon farming centres in the Kawésqar National Reserve for lack of a consultation process before approving the projects: Poder Judicial. “Corte Suprema acoge recurso de protección de comunidades indígenas en contra de relocalización de centros de cultivo de salmones.” Poder Judicial, February 1, 2022. https://www.pjud.cl/prensa-y-comunicaciones/noticias-del-poder-judicial/68596
[xxi] Cámara de Diputados y Diputadas - Chile. ”Modifica la Ley General de Pesca y Acuicultura, en materia de protección ambiental y el desarrollo económico y social en áreas silvestres protegidas en cuyos límites se hayan otorgado concesiones de acuicultura. Numero de boletín: 14811-21. 24 de enero de 2022.