Chilean Presidential Commission for Peace and Understanding: a real opportunity or more of the same?
BY HERNANDO SILVA NERIZ FOR DEBATES INDÍGENAS
In recent decades, conflicts over Mapuche ancestral lands have intensified in the southern central part of the country. At the same time, the policies promoted by the State have proven to be insufficient, and the territory has been militarized. Within this context the Commission is presented as a possibility to open a social dialogue through institutional channels, to determine the real demand for land and to propose mechanisms for the solution of conflicts to achieve peace.
President Gabriel Boric announced the creation of a Presidential Commission for Peace and Understanding during a ceremony held on June 21 in La Moneda. This Commission, which had been announced in 2021 by the President, aims to lay the foundations for a medium and long- term solution to the land claims of the Mapuche people and their communities, which have so far not been satisfactorily met. It also seeks to contribute to achieving a better coexistence of the inhabitants of the regions of Biobío, La Araucanía, Los Ríos and Los Lagos, in the traditional Mapuche territory in southern Chile.
The Commission aims to establish a process of dialogue that will produce a preliminary agreement with the Mapuche representative organizations and communities to address the expectations they have today in terms of land reparations. With this as a backdrop, the Commission should submit a report to the President of the Republic and to the National Congress proposing institutional and legislative modifications for these purposes, including Law 19.253, known as the Indigenous Law, which is currently in force. Once the reforms are approved, the Commission would complete its task and begin the implementation stage of the proposed measures.
The mission of the Commission
The Commission is made up of eight prominent figures from a broad political spectrum, including representatives of the Mapuche people, parliamentarians, representatives of the business community and farmers in these regions. Its main mandate is to determine the real demand for land of the Mapuche communities and to propose concrete and diverse mechanisms for institutional reparation for the dispossession to which the Mapuche have been subjected throughout history.
Among the specific objectives (Art. 2 Decree No. 14) of the Commission the following are identified:
a. To conduct a diagnosis of the Mapuche people's demand for land and the lands already handed over by the State of Chile and then to evaluate the persistent gaps between these two. This has the aim of quantifying this demand.
b. To promote a process of dialogue between the different political actors in the regions to reach consensus and lend legitimacy to the policies and solutions suggested in its final report.
c. To analyze and recommend mechanisms, reforms, conditions and forms of reparation that contribute to peace and understanding among the actors to solve the conflict, considering the dialogues already held and the information gathered.
This is an initiative of the utmost importance. Although land conflicts are very old in the central- southern regions of Chile (regions from Bío Bío to Los Lagos, in the territory traditionally occupied by the Mapuche people), they have worsened in recent decades, seriously affecting interethnic coexistence in this part of the country. In recent years, Mapuche communities and organizations have mobilized to reclaim the lands traditionally occupied by the Mapuche, of which they were dispossessed.
Through the National Corporation for Indigenous Development (CONADI), the State has promoted a policy for the acquisition and subsequent transfer of land to the Mapuche communities, but it has been largely insufficient to respond to their demands. In effect, the mechanism used by CONADI is limited to addressing the demands for lands that in the past were recognized by the State to the Mapuche (legally owned lands) of which they were dispossessed, leaving aside the demands for lands of traditional occupation that were never recognized, which constitute a significant part of the claim. On the other hand, the market mechanism used for these purposes and the scarce resources allocated to them have led to a significant delay in the State's response to this legitimate Mapuche demand.
The lack of an effective state response to the Mapuche people's demand for land has been one of the main causes of social protest. In the case of Mapuche protest, which has included both non-violent and violent forms, the State's response has focused on the use of force and disproportionate criminal prosecution, often resulting in situations involving violations of the right to life, to physical and psychological integrity, and to due process, among other affected human rights. This situation has led to an increase in acts of violence in these regions, involving both Mapuche and non-Mapuche entities. In this context, in recent years Parliament has declared a state of emergency in the area, which has reinforced the presence of military troops and generated a serious climate of militarization in the territory.
In this context, the creation of the Commission for Peace and Understanding, with a broad mandate to seek and propose solutions regarding this reality, in particular the problem of the Mapuche lands of traditional occupation in conflict, is encouraging. The Commission opens a door to address this historic problem through dialogue and institutional channels. Although in the past there had been instances to address the Mapuche land issue, such as the Historic Truth and New Deal Commission in the early 2000s, these were limited to addressing only the dispossession of the Mapuche people from their legally owned lands previously recognized by the State and not the lands that were never recognized.
The success of the Commission's work presents important challenges that cannot be ignored. On the one hand, there is the lack of knowledge that its members, some of whom represent business sectors and unions (farmers), may have about the human rights standards that should be taken into consideration in the resolution of land conflicts affecting Indigenous Peoples. Indeed, some of its members have questioned whether the Commission should address the so- called "ancestral lands" in its work, implying that it should be limited only to the demands for lands that were recognized by the State for the Mapuche and which are not in their possession today. It has also been pointed out that the focus of the Commission's work should be on economic compensation for the lands of which the Mapuche have been dispossessed.
The international legal framework
According to the international standard applicable to the rights of Indigenous Peoples, including ILO Convention 169 ratified by Chile, the basis of the rights of Indigenous Peoples over their lands does not lie in the title granted by the State, but in their traditional occupation. Also in line with the same applicable standard, States must "take such measures as may be necessary to determine the lands which the peoples concerned traditionally occupy and to ensure the effective protection of their rights of ownership and possession" (Art.14.2).
This standard has also been developed in the UN system and in the Inter-American Human Rights System. In this regard, the jurisprudence of the Inter-American Court of Human Rights is very important since its 2001 decision in the Awas Tingni v. Nicaragua case, it has repeatedly affirmed that possession of land based on indigenous custom, even in the absence of title, constitutes the basis for ownership of the land. It further states that the close relationship that Indigenous People have with their lands must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity and their economic survival.
Also, applicable international law establishes the possibility for the State to acquire lands of equal value to be given to these Indigenous Peoples or to compensate them for their value in specific cases in which it is not feasible to restitute the lands of traditional occupation of which they have been dispossessed. However, such measures cannot be arbitrarily imposed on the Indigenous Peoples but must be established in agreement with their representative institutions.
In view of this, it is also necessary for the Commission to take into consideration the approach and resolution of indigenous land conflicts in different contexts around the world, including Latin America (cases of Brazil, Colombia and Argentina) and other experiences, such as Canada and New Zealand. This knowledge can contribute to the work of the Commission in the search for, and determination of, alternatives to solve the land conflicts that affect the central- southern area of the country and led to the Commission’s creation.
A social dialogue to achieve peace
Within the scope of the Commission's action, it is imperative to open spaces that allow the communities and organizations of the Mapuche people to accredit their territorial claims according to international standards. In this way, they will be able to channel their legitimate demands through institutional channels through the Presidential Commission for Peace and Understanding.
Given the diversity of the Mapuche people, another element of special relevance is the identification of effective ways to include the various representative organizations throughout their territory in the dialogue. This can only happen as long as the agreements reached have legitimacy in the various sectors of the Mapuche people and always take into account the standards of participation contemplated in the international law of Indigenous Peoples.
In short, the Commission for Peace and Understanding is a historic opportunity that can offer a qualitative and quantitative progress towards the construction of structural responses in the reconstruction of the social balance and peaceful coexistence of all the sttakeholders that inhabit the territory. To this end, it is necessary to seriously and structurally consider the identification and resolution of conflicts related to Mapuche traditionally occupied lands, the standards of international law of Indigenous Peoples and the effective participation of all Mapuche sectors.
If these conditions are met, it will be possible to generate a social dialogue that facilitates the reaching of agreements for the reconstruction of the social balance and the peaceful coexistence of all the stakeholders that inhabit the territory. Thus, this Commission could be a real opportunity to achieve peace, and not be more of the same, which up to now has not yielded results.
Hernando Silva Neriz is the Codirector of the Observatorio Ciudadano (Citizen Observatory) (Citizen Observatory).
Tags: Indigenous Debates
