Stream 3: Rights of Indigenous Peoples
Segundo Aniceto Catrimán, Pascual Huentequeo Pichún Paillalao, Víctor Manuel Ancalaf Llaupe, Juan Ciriaco Millacheo Licán, Florencio Jaime Marileo Saravia, José Benicio Huenchunao Mariñan, Juan Patricio Marileo Saravia and the activist Patricia Roxana Troncoso Robles were tried in 2003 under Law 18.314 (or the Anti-terrorist Law). They were accused of conspiring, planning and starting fire attacks on the property of forestry companies and farm owners located in various municipalities in Araucania and Biobío, and they were given sentences between five and 10 years in prison as well as restrictions on the exercise of their rights to speech and political freedom.
These events occurred in the context of the Mapuche protests demanding the return of their ancestral lands. The dictatorship of Augusto Pinochet (1973-90) annulled the communal properties in 1981 and emphasized private property, benefiting wood companies.
On 29th July 2014, the Inter-American Court condemned the Chilean State, because the sentences it issued against the Mapuche for their alleged crimes were based on an antiterrorism piece of legislation which violates the principle of legality and the right to the presumption of innocence.
Based on this case this session aims to analyse the land issues and the human rights of indigenous peoples’ in Chile with a comparative Latin American perspective.
Jimena Reyes
Jimena Reyes is an avocat from the Paris Bar. She joined the FIDH as the Director for the Americas in June 2003.
Following the return of democracy in Chile, the Mapuche were confronted to the repeated denials of the Court to recognize their land titles. Investment projects in forest operations, in hydroelectric installations, and in roads were implemented without prior consultation and contributed to stripping the Mapuche of their land. This led them to organise public protests to defend their rights. As of 1992, authorities started to criminalise their protests. In particular in 2001, authorities started to selectively and discriminatorily apply the Anti-Terrorist Act against the Mapuche leaders and members. The aim was to weaken social protests and demonstrations for the recovery of ancestral lands.
“FIDH welcomes this momentous decision and expresses its concern over the extensive violations of economic, social, and cultural rights that affect communities in Latin America, in particular indigenous communities” said Karim Lahidji, FIDH President.
Rodrigo Cespedes
Attorney at law. Associate Researcher, Law School, Manchester University. PhD candidate, Lancaster University.
Indigenous rights and Criminal law in the Americas: regional application of the ILO Convention 169
IACtHR Norin Catriman case (2014) has opened the debate about indigenous rights and criminal system and the influence of regional human rights law in domestic jurisdictions.
My paper deals with indigenous rights in a criminal context, focusing on Chilean and Colombian case law. The ILO-Convention 169 (1989) acknowledges indigenous people as right-holders of international rights. That idea has triggered a legal revolution in the Americas: natives have used international provisions in environmental and criminal trials. The ILO 169 has been particularly important for native people in order to protect their environment and way of life and, in some way, correct the injustices and abuses they have suffered through history. That revolution is a challenge to traditional legal thought and relevant to practitioners and scholars.
ILO 169 recognises natives as protected minorities and grants vast importance to aboriginal custom as a source of law. Indigenous custom has been considered as an essential element in criminal cases that have involved sexual crimes, violent disputes for land or drug traffic. The ILO 169 and Colombian and Chilean legislation consider indigenous custom as a source of law, especially as a way to mitigate criminal liability. Because in those cases indigenous custom is crucial, a multidisciplinary approach is essential in order to adjudicate with fairness. ILO 169 has been applied in recent Chilean case law, and the defendants have claimed “cultural defences” or “culturally motivated crimes”, sometimes successfully. At the same time, indigenous people punish customary offences and ILO 169 allows the existence of indigenous courts with jurisdiction to prosecute them. That provision has been implemented by Colombia and has originated relevant case-law. In both countries, criminal legality is a constitutional principle and it has been challenged. On the other hand, the presence of anthropologists or ethnographers as expert witnesses has been fundamental; then, an interdisciplinary study, which involves several social science areas, is needed. The ILO-Convention 169 has played an important role in developing and enriching Latin-American domestic law. Chile and Colombia provide an excellent Latin-American comparative study on indigenous rights and the influence of IACtHR rulings in their legal systems.
Nancy Garcia
Studying an LLM candidate in International Human Rights Law at the University of Essex.
She graduated from Facultad Libre de Derecho de Monterrey and studied Law at the University of Regensburg in Germany. She obtained a Bachelor of Arts in Philosophy with Honours from the University of Arizona.
This paper will address the conflicting human rights issues surrounding the construction of the Aqueduct ‘Independencia’ in Northwest Mexico, which on the one hand affected the Yaqui tribe’s right to water and on the other hand aimed to provide sufficient water to the population of the near-by capital of Sonora, which suffers from a severe drought.
Last year, the Supreme Court of Mexico rendered judgment, Amparo under review 631/2012, last year regarding this case. Due to the procedural legal framework, the tribe alleged violations of their right to participation. The Court ruled the indigenous community had to be consulted within the process. A year and a half later, the authorities have not complied with the judgment.
The struggle for natural resources in the Americas has been an integral part of our history as clearly demonstrated during colonial times. Indigenous peoples have since then been marginalised and exploited under the pretext of development and public interest.
In recent years the rise of conflicts surrounding access to water has proved that it is one of the pivotal issues of our time. Particularly, the vulnerability of indigenous peoples and the high demand for access to water (both from the urban populations and the economic sector) have ignited several water-based conflicts in our continent, as in the case of Bolivia, Peru, Chile, but also in Mexico.
There is an urgency in securing the population’s access to water and sanitation, as well, as ensuring its availability for economic activities, like industry, mining and agriculture, which in some cases are essential for providing the basic needs of the population. This kind of scenarios foster social conflict, since there are two sectors of the population disputing for the enjoyment of the same right. Due to the limited availability of water, dependent on the quantity of the resource, often it means that one group will have their right to the liquid restricted.
This paper will analyse the issue from a perspective of conflicting rights, those of the indigenous group and those of the urban population in respect to access to water. The right to access to water is not an absolute right, it is subject to restrictions, but the question is: what are the limits of this restriction? Can the State limit the indigenous peoples’ right to water? If yes, what kind of safeguards must the State take when restricting the availability of water to an indigenous group?
Anubhav Dutt Tiwari
Studying an LLM in International Human Rights and Humanitarian Law from the University of Essex. He is an advocate from National University of Juridical Sciences, Kolkata in 2013.
Free, prior and informed consent in Latin America
A struggle for justice is inevitable when basic rights of survival are refused. It is a manifestation of lack of alternatives to survive. States must address this for each of their citizens including the indigenous peoples.
The Inter-American Court of Human Rights in the case of Norín Catrimán et al. v. Chile was presented with the issue of the legality of indigenous peoples’ struggle to reclaim their lands. Though, the case at hand related to the misuse of anti-terrorist legislation by the State leading to stifling of the indigenous peoples’ struggle, it also poses before us a wider question of the right to land for the indigenous peoples. This right has been violated continuously by the States in Latin America in collusion with private entities so as to render the indigenous peoples landless where their very existence as a community is threatened. The internationally recognised notion of free, prior and informed consent (FPIC) which is the cornerstone of the rights of indigenous peoples to their lands is grossly violated by States themselves leading to an unstable situation of conflict. FPIC encompasses compensation, resettlement, protection of the ecology and finally rehabilitation to the original lands. Safeguarding the concept of FPIC while finding a balance with economic development is seen as a challenge by States, though it may not be so difficult, if indigenous peoples are made an essential part of the consultation process. In this respect, it is necessary to analyse the views put forth in the Inter-American system of human rights to come to the conclusion that States have an obligation to adhere to FPIC since ‘development’ has to complement the rights of indigenous peoples and not derogate from them.
Thus, the paper would seek to address how the standard of FPIC can be functional in Latin America where the lands of indigenous peoples have been taken away illegally in the first place. The paper would draw upon various examples from across Latin America and analyse the effectiveness of the domestic legislations in upholding the idea of FPIC as a standard to be adhered to under international law. The purpose of the paper is to conclude with an effective mechanism wherein the broad principle of FPIC can be applied at a later stage to promote the rights of indigenous peoples to their lands and subsequently address their concerns.
Christian Blanco and Luis Garrido
C. Blanco: MSc Student in Sociology, University of Oxford. BA in Philosophy, BA in Sociology, and MPhil in Social Systems, University of Chile.
L. Garrido: PhD Candidate in Sociology, University of Cambridge. Sociologist, BA in Sociology, and MPhil in Public Policies, University of Chile.
Recognizing indigenous rights, the cases of Chile and Mexico
This article provides a comparative analysis of the Chilean and Mexican cases concerning state recognition of indigenous rights. Since the colonization period, indigenous communities have embarked on a wide range of social, political and legal actions in defence of their territory, resources, culture, civil and human rights. While Mexican law recognizes almost seventy indigenous communities and Chilean law nearly ten, currently in both countries it is possible to identify several ethnicity-related conflicts and some enforceable commitments that still have not been implemented.
The case of the Mapuche in Chile is remarkable. From the return of democracy, in 1990, a series of conflicts took place between some Mapuche organizations and the Chilean state due to the occupation of the Araucanía, which continued despite the existence of a legal framework for indigenous people from 1993. Several organizations representing the Mapuche communities, mainly from Biobío and Araucanía, have promoted ethnic claims relating to jurisdictional autonomy, ancestral lands, economic benefits and recognition of cultural identity.
In the Mexican case, although the existence of the Convenio 169, which legitimates right to consultation, most indigenous communities have been excluded during the implementation of federal programmes, policy design and implementation of infrastructure on indigenous territory and drafting of laws process, as the case with the community of Mogotavo.
Some indigenous human rights issues in both countries have become relevant international organizations. Of the 13 cases of indigenous people´s human rights addressed by the Inter-American Court of Human Rights, there is one case involving Chile in which the antiterrorist law was applied selectively to the detriment of members of the Mapuche indigenous people, and two cases involving Mexico regarding the rape and torture of Me’phaa indigenous women by members of the armed forces.
In this context, this research aims to analyse and compare how governments and international organizations can develop strategies that affect indigenous human rights. This paper will analyse the cases of Chile and Mexico and address the extent to which the theory of Institutions by North (1991) could be essential in providing some proposals for solving these problems. Finally, two main conclusions and recommendations for future research are presented.