| UNIVERSITY OF PADUA | UNIVERSITY OF DEUSTO |
Indigenous peoples' right to land: international standards and possible developments.
The cultural value of land and the link with the protection of the environment.
The perspective in the case of Mapuche-Pehuenche.
| Author: Lorenzo Nesti | Supervisor: Natalia Alvarez |
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Index Chapter I. The term 'indigenous'.
Ia. Elements of a definition of 'indigenous': ambiguities and contradictions. Ib. The definitions of indigenous in international law. Ib1. Difference with minorities. Ic. A definition for this work?
Chapter II. Collective rights.IIa. The question of the term 'peoples' and the right to self-determination. IIb. The right to land. IIc. The right to environment.
Chapter III. Indigenous peoples' link with land and environment.IIIa. The cultural value. Indigenous peoples' cosmology. IIIb. The instrumental value. The relationship between indigenous peoples' rights and the protection of the environment. IVa. The UN Working Group on Indigenous Populations. IVb. Individual petitions to the Human Rights Committee. IVc. Other UN treaties. IVd. International instruments associated to the environment. The UNCED. IVe. The ILO. IVf. The World Bank. IVg. Other UN Specialised Agencies. IVh. The Inter-American System.
Chapter V. The Mapuche People.Va. The social organisation. Vb. The struggle against colonisation. Vc. The last century. Vd. The threats to Mapuche people.
Chapter VI. The case of the dams on the Biobío river.VIa. Exposition of the case and actors involved. From Pangue to Ralco. VIa1. The Biobío, environment and bio-diversity. VIa2. The Pehuenche. VIa3. The Pangue dam. VIa4. The World Bank's involvement. VIa5. The Ralco dam. VIa6. The Ley Indígena and CONADI. VIa7. The last developments. VIa8. NGOs' and international community's actions in support of the Pehuenche. The response of ENDESA and the Chilean government. VIb. Environmental, economic, political and cultural issues brought up by the case. A brief analysis. VIb1. Dams building: the costs involved. VIb2. World Bank's strategies. VIb3. TNC's influence over State's actions. VIb4. Indigenous peoples' strategies. VIc. Possible legal resorts for the Mapuche-Pehuenche at the international level. VId. Major obstacles. VId1. The question of the irresponsibility of the actors involved. VId2.The question of international standards enforcement. VIe. Possible outcomes. VIe1. Improving the control on the funding procedures? VIe2. Human rights responsibilities for TNCs. VIe3. Strengthening the link between indigenous peoples' rights and environment protection. VIe4. The cultural value of land, international instruments and State's role.
Abstract The topic dealt with in this paper is the right to land of indigenous peoples.The methodology of the research has consisted in the analysis of a bibliography and documentation regarding the topic and the application of this analysis to a case study.The case-study chosen regards the building of two dams on the Biobío river, in Chile, with the consequent flooding of the ancestral lands of the Pehuenche an indigenous group pertaining to the Mapuche people.The bibliographic sources of the first part have been found mainly in the library of the University of Deusto. Articles and other documentation (as UN reports) on the topic have been supplied to me by my Supervisor Natalia Alvarez, by the documentation centre of the Human Rights Institute ‘Pedro Arrupe’ and by the NGO ‘Mugarik Gabe’. For the case the material was researched especially in Internet. The web-sites visited have been several: UN, ILO, World Bank, various Mapuche NGOs and environmentalist associations.During the research I’ve exchanged many ideas and comments with my supervisor and other people. Oscar Paillacan Ramirez, Mapuche representative in Spain for Ñuke Mapu and Mapuche International Link, has supplied to me very important material and has supervised the part of this paper regarding Mapuche’s culture, traditions and religion. He has been determinant in explaining to me Mapuche’s conception of land and environment. Dario Jaña, co-ordinator of an Internet e-mail group to exchange information and raise support for the cause of Pehuenche against their displacement, has given to me very important comments on the case and the actors involved.The approach for this work has been a mainly a Juridical one (international human rights law and international environmental law). However, since the value that cultural conceptions have for this topic, cultural anthropology’s perspective has found a relevant scope in this work. Political science’s considerations are also included.All along the various chapters, the objective has been to explain why the right to land (including the preservation of their environment) is so relevant to indigenous peoples and which are the existing and potential ways to protect it.The paper consists of an introduction, six chapters and the conclusions. The first chapter has analysed the possible elements for a definition of the term ‘indigenous’ and how the link with land and environment is important in this sense. The second chapter has examined the idea of ‘collective rights’ and the recognition of the collective rights to land and to preserve the environment in international instruments regarding indigenous peoples. The third chapter has look at the cultural value of land and environment in indigenous peoples’ conceptions and at the functional relation between indigenous peoples’ rights and environment protection. The fourth chapter has made an assessment of the possible legal instruments or procedures that indigenous peoples can apply at the international level to protect their rights to land and preserve their environment. The fifth chapter has introduced the case study by giving a short overlook of Mapuche history, culture, religion and actual situation in the Chilean State. The sixth chapter has exposed the case describing the events and the role of all the actors involved. It has then showed the various issues brought up by this case and applied the concepts analysed in the former chapters to expose some general considerations.The conclusions drawn from the work developed have been pointing on the necessity of assigning and strengthen human rights responsibilities to non-State actors as private companies and lending agencies. It has been also evidenced that the relation between the recognition of indigenous peoples’ rights and environment protection to be fruitful has to be submitted to certain conditions. Moreover, it has been underlined the need for international instruments to call State to intervene with promptness in the protection of indigenous peoples’ rights to land and environment. As overall conclusion this paper has claimed that the protection of indigenous peoples’ rights to preserve their land and environment has to start from the recognition of indigenous peoples’ specific relation with their land. The cultural and spiritual value that land assumes in indigenous peoples’ life should be at the basis of the recognition of indigenous peoples collective rights to effective participation and to free and informed consent to every project or decision affecting them.
Introduction The topic dealt with in this paper is the right to land of indigenous peoples. All along the various chapters the attempt will be to explain why this right is so relevant to indigenous peoples and which are the existing and potential ways to protect it. It is emblematic that, to look at these concepts in a concrete situation, the case chosen is the one of Mapuche people. Mapuche means people ( che) of the Earth ( Mapu). This gives already and important sign of the strong relationship that this people has with its land. Land proudly defended by Mapuche for centuries against the Inca Empire and the Spanish colonisation.Among the potential ways to protect indigenous peoples’ right to land the paper will try to assess in particular the relationship between indigenous peoples and environment. This essay will thus analyse whether the protection of environment can be helpful for the recognition of indigenous peoples’ rights. Or rather, whether emphasising how indigenous peoples sustainable and environmentally respectful way of life can lead more quickly to the recognition of indigenous peoples’ right to land as instrumental to environmental protection.In a first chapter the term ‘indigenous’ will be examined considering all the elements of discussion that define this term and how the debate about this issue is reflected in international law. Particular attention will be given to the question of self-definition.The second chapter will look at an important element that characterises indigenous peoples, namely the fact that they have collective rights. After analysing the concept of collective right a brief overlook will be given over the use of the term ‘peoples’ in the case of indigenous peoples and its implications for the question of the right to self-determination. The collective rights of indigenous peoples to their land and to preserve their environment are of relevant concern in the second part of this chapter.The third chapter is devoted to the examination of the distinct link that indigenous peoples have with land and environment. First the analysis will regard the spiritual value that natural environment and land assume in indigenous peoples’ cosmology. Then it will assess how natural elements pervade so deeply indigenous peoples’ life and religion and how the concept of land has a strong cultural value that distinguishes it form non-indigenous conceptions of land as an exchangeable good to buy and sell. This part is very important in order to better understand the case study exposed in the final chapter. A second part will look at the relation between indigenous peoples’ rights and environment in the sense explained above: how functional is the recognition of the former for the protection of the latter and vice versa. This part will try to demonstrate that not always the protection of the environment in itself brings benefits to indigenous rights.A fourth chapter will expose the international instruments that could be used by indigenous peoples to protect their land and environment. The chapter will contain instruments directly related to indigenous peoples of different legal value, instruments that refer to indigenous peoples among other issues (as the ones related to environment) and procedures that, although in many cases non directly devoted to them, can be used by indigenous peoples to obtain protection for their rights. This part would like to be a useful instrument to analyse the case study of the Mapuche-Pehuenche by the point of view of the possible legal resorts at the international level.The fifth chapter will constitute and introductory part of the case study. It will give a short historical introduction of Mapuche people, trying to expose how land and environment are such a deep part of their spiritual life and social organisation and how their history represents a continuos attempt to defend this relationship. The sixth chapter is devoted to the case of the building of two dams on the Biobío river, in Chile, with the consequent displacement of the Pehuenche, a Mapuche group living in the area. The exposition of the case will start from the first dam, Pangue (already completed) to the second one, Ralco (under construction). This part will give account of the involvement of the World Bank and of a transnational corporation (ENDESA). It will assess also the Pehuenche’s action to defend their traditional lands and the role played by the Chilean State.After analysing the issues brought up by the case, an assessment of the possible legal resorts that Pehuenche can utilise at the international level to obtain protection for their right to land, will be done, mainly making use of the explanation given in Chapter IV. Then, a part will be devoted to the major obstacles that the case has evidenced for the protection of indigenous rights to land at a general level. This part will try to insert in the analysis the perspective of the actual process of globalisation and privatisation with consequent losing of State’s control over economy and increasing power of international actors as private companies (TNC) and lending agencies (Banks).In a final part the attempt will be of showing the possible outcomes and suggestions that can result by the analysis of the case and on the ground of the discussion brought in the former chapters. This conclusive part will try to support the argument that the protection of indigenous peoples’ rights to land and to preserve their environment should start from the recognition of their specific relation with land at a cultural level. This presumption, in the opinion of the author, should have as consequence that every project, decision or initiative undertaken by State or non-State actors and affecting indigenous peoples’ rights, should recognise two important attribution to indigenous peoples: their effective and culturally appropriate participation and their free and informed consent.
Chapter IThe term ‘Indigenous’. As it is true for other concepts, it has thus far proved impossible to arrive at a commonly accepted legal definition of ‘indigenousness’. Different terminology has been used: the term ‘Native’ refers mostly to the origins of an individual; it is often used in North America where also the term 'First Nations' has been used to recall the definition employed in last century treaties. The term ‘Autochthonous’ comes from geology language (the qualification of land), so autochthonous peoples are the ones leaving in the same land since immemorial times or so considered. It is the qualification more used in French (autochtone) for indigenous people and the second part of the word, in Greek means ‘the land’. In the Anglo-Saxon literature the term used more frequently is ‘Indigenous’, that in English carries strong connotations of authenticity, belonging and time honoured prescriptive rights.Some indigenous peoples prefer the term ‘Aboriginal’, term used in Australia, since it seems to qualify much clearly the condition of colonial-like dependence from a national State, even if the administration of this latter dates back several centuries and it is not colonisation in a strict sense.The first part will first try to analyse the anthropological and sociological features contained in the term ‘indigenous’, to assess then how indigenous peoples have been defined in international law. Ia. Elements of a definition of 'indigenous': ambiguities and contradictions. Indigenous peoples live in extremely varied environments, generally harsh and remote, such as tundra, drylands and rainforest, from which they satisfy all their needs. Their mode of subsistence is as varied as their environments: they may practice fishing, hunting, gathering, pastoral nomadism, cultivation or a range of these in combination. Despite the variety among indigenous peoples around the world, some generalisations may usefully be made.Many scholars usually distinguish between objective elements (as not dependent on a choice) and subjective elements (as dependent on a choice or value-judgement).Those are the elements more often identified in the doctrine of indigenous peoples:a) The identification of indigenous peoples inhabitants, or the descendant of the original inhabitants of a particular territory, then conquered by a group arrived in a second time; group from which descendants, the conquered people continue to have a different culture and toward which continue to be in a subordinate position.This first distinctive aspects bring two particular problems: first is that in this way the indigenous tend to be identified as the American ones (at most comprising Australia and New Zealand), oppressed by the European conquer and colonisation in the last centuries. This vision has been set out by China and India (that together account for the half of the 300 millions of indigenous people, part of the 5 thousand groups quantified by the UN in 1993(1)), to pretend that in their States there are not indigenous peoples. The second problem related with this part of indigenous peoples’ definition, is linked with the concept of ‘original inhabitants’. During centuries of wars and forced relocations, many territories have seen different populations living on them, and the phenomenon of ‘metissage’ made the situation much more complex; in this sense the chronological criterion is not always faithful:
- Objective elements.
“Il existe certes des cas évidents: les Amérindiens étaient en Amérique bien avant les Européens. Mais ailleurs, notamment en Afrique, mais aussi en Asie, il en va fréquemment autrement. Les récits de fondation, auxquels se réfèrent souvent les autochtones pour légitimer leur antériorité peuvent être des armes à double tranchant, car ils postulent des migrations fondatrices qui n’ont pu que rarement se produire dans des espaces vides d’hommes: l’autochtone d’aujourd’hui peut être aussi le conquérant d’autrefois”.(2)b) Indigenous peoples usually are characterised by a subsistence economy with no production aimed at the market or the profit; the division of labour, if existing, it is generally defined along gender and age, and the minimum production unit is an essentially self-sufficient group of families; social cohesion is maintained by equally sharing wealth within the group.This element, with the former, is one of the usual difference from minorities that indigenous peoples tend to underline. Indeed, although minority and indigenous peoples share many features as a distinct language, religion or culture, and many times also a specific territory, indigenous peoples prefer to see themselves as different also for legal/political reasons. Apart from that, there are some objective differences, as the above mentioned, also in the fact that in some cases indigenous peoples can be not the minority but the majority (still not in a dominant position) of a State, as in Bolivia or Guatemala.c) Indigenous peoples usually do not have centralised political institutions, but a communitarian form of organisation where decisions are taken on the base of consent. Many times their societies are rooted in kinship groups that enjoy considerable local autonomy in the exercise of authority; kinship structures provide individuals with security and give them an established role within the group as a whole. Rivalries and antagonism between groups are usually ritualised and limited by tradition. One risk associated with this point and the former (socio-economic organisation) is one of closing down indigenous peoples in a static model oflife, not taking in due account the dynamic character of their evolution and putting into question if a people, or a part of it, that does leave this traditional practices and structures retains the status of indigenous (for instance, only 10% of the Sami people practice traditional herding)(3).d) It is often said that indigenous peoples have a strong connection with the environment where they live, that they make a sustainable use of the resource they dispose of, for example, by way of nomadic agriculture or gathering, in full respect to the nature. While this has been proved to be true in the majority of the cases,(4) some studies have shown that some times, the ‘natural ecologism’ of indigenous peoples can come from a western idealisation.(5)e) Indigenous peoples have as a distinctive feature, the strong link with the land, that usually they held in-groups.(6) This subject, related with the connection with the environment in general, and the socio-political organisation of indigenous peoples’ societies, will be dealt with in the third chapter, devoted to indigenous peoples’ link with land and environment. Nevertheless is worth to say here that all the elements so far listed, attain to indigenous peoples as cultural attributions that distinguish them from other groups. It is important to underline this point in the measure that cultural/ethnic elements to identify the presence of an indigenous people have been replacing the use of biological qualifications, although these latter are still used according to some U.S. laws(7) to identify members of indigenous peoples for social service or other measures and are very dangerous for creating racial /racist and exclusive arguments.f) A particular feature not agreed upon by the doctrine is the one of vulnerability of indigenous peoples. This feature would come from the striking difference between their societies and the one of the State englobing them. It would imply the lack of defence from the many potential and actual aggressions to their land, culture, traditions, resources. Most countries with indigenous peoples within their boundaries have highly centralised political, legal and economic systems with complex division of labour. Without cultural adjustment, indigenous peoples cannot express their collective interests at national level. Kinship and reciprocity can easily break down when monetary relations are established. Traditional land ownership has no defence against the concept of private property. Population densities may be relatively low, livelihoods may be based on mobility and no taxable surplus may be produced: governments may see these as justification for dispossessing indigenous peoples. Ecologically sound subsistence systems are not regarded as a benefit to the country, but rather as a waste of resources. The advantage of this attribution is to emphasize the necessity to protect these peoples but, at the same time, a doubt is left on what happens when a people’s vulnerability is not existing any longer, because, for instance, it has reach a sufficient protection or capability to defend its rights. The big problem with this element is that it can hide a paternalistic approach to indigenous peoples that is something completely unjust and quite old-fashioned.All the ambiguities correlated with the above-mentioned elements of the traditional definition of indigenous, show the importance of a criterion of self-definition:
- Subjective element.
“Indigenous groups emphasize their right to define themselves, both in terms of individual self-identification and with respect to the community right to define its members. This ‘subjective’ criterion has been widely accepted, although it is not clear whether it would be sufficient if other ‘objective’ criteria (e.g. ancestry) were not also present”.(8)This criterion contains two elements: the recognition of a group and the recognition of a person. The first implies that a group asserting itself as indigenous people is so accepted by the international community and the other indigenous peoples. The second implies the definition of oneself as an indigenous person and his/her recognition as such by the group. It is very important for indigenous peoples to assert themselves as subject of rights and as different from minorities, but there can be some risks for individuals. It is uncertain, for instance, whether an ethnically indigenous individual would lose whatever legal rights and obligations accrue to an ‘indigenous’ person, if he or she was expelled from the indigenous community or chooses to become fully assimilated into the dominant society. Ib. The definitions of indigenous in international law. The definitions of what is ‘indigenous’ in international law is quite recent and still controversial.A very thorough definition is contained on the “Study on the problem of discrimination against indigenous populations”, a report commissioned in 1972 by the UN Sub-Commission for the Prevention of Discrimination and Protection of Minorities to its Special Rapporteur José Martinez-Cobo and presented in 1983. This definition, later accepted by the Working Group on Indigenous Populations and various Indigenous Peoples as reference for the works of this organ, contains objective and subjective criteria:“Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns.It is important to stress that according to this definition, in principle, even only one of the factors listed, is enough to recognised an indigenous people (or community, or nation, in the text), but this factor has to be in a relation of historical continuity with pre-invasion or pre-colonial societies.This strong emphasis given to the antecedence and historical element of the definition has created some problems with the Asiatic countries, as India and Bangladesh. According to them, after the de-colonisation, in their countries every person was an indigenous, because it is impossible, as a matter of fact, to establish which groups were antecedents.This definition seems to contain all the elements exposed in the former paragraph: cultural difference (social and political organisation, link with environment and land, and, here, the language), the historical continuity and the self-definition; it does not contain the concept of vulnerability, but it prefers to underscore the situation of non-dominance.The other important definition is the one elaborated by the International Labour Organisation in the Convention nº 169, ‘Indigenous and tribal peoples in independent countries’ of 1989, aimed at renewing the former Convention nº 107 of 1957 and applying to:
This historical continuity may consist of the continuation of, for an extended period reaching into present, one or more of the following factors:On an individual basis, an indigenous person is one who belongs to these indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group).
- Occupation of ancestral lands, or at least of part of them;
- Common ancestry with the original occupants of these lands;
- Culture in general, or specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood, life-style, etc.);
- Language (whether used as the only language, as mother tongue, as the habitual means of communication at home or in the family, or as the main, preferred, habitual, general or normal language);
- Residence in certain parts of the country, or in certain regions of the world;
- Other relevant factors.
This preserves for the communities the sovereign right and power to decide who belongs to them, without external interference”.(9)“a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;The distinction between tribal and indigenous peoples is largely the result of the pressures of different Asiatic countries, trying to avoid the qualification of ‘indigenous’ to some of the peoples living in their territories.This definition is a little bit less elaborated than the one of Martinez-Cobo in the explanation of the various criteria, but it contains three of the four elements of this latter (the domination factor is not openly laid down). It is worth to note the importance that both definitions gave to the element of self-definition; the Martinez-Cobo definition in particular seems to recognise to indigenous peoples a wide autonomy in this field. Some scholars pointed to the risk present with the sovereign right and power not to accept as member persons who might be considered objectively as belonging to them, for instance, on account of their descent:
b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions;
2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply”.(10)“The right and power of indigenous people to disregard objective ethnic criteria in determining their members, as suggested by the Special Rapporteur, raises some principal questions in light of international human rights law, in particular in relation to Article 27 of the International Covenant on Civil and Political Rights. This expressly provides that persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.Although the Working Group on Indigenous Populations has opted for the self-definition concept as defined in the Martinez-Cobo definition, every year at the WGIP meeting there is always a meeting devoted to that issue with a big discussion between States and indigenous peoples on that question.
The power to deny an indigenous person the right to enjoy his/her culture in community with the other members of his/her group has been further elaborated by the Human Rights Committee in the cases of ‘Sandra Lovelace v.Canada’ and ‘Ivan Kitok v.Sweden’”.(11)"65...La mayor parte de los gobiernos manifestaron la opinión de que no era necesario incluir en la declaracíon una definición de la expresíon "poblaciones indígenas". Muchos gobiernos reconocieron que la identificación propia era el factor más importante para determinar quién es indígena. Algunos gobiernos opinaron que sería conveniente contar con una definición de la expresión "poblaciones indígenas" por mor de la claridad, pero que el no hubiera una definición no debería impedir que el grupo de trabajo hiciera progresos en su labor sustantiva.It is relevant to underscore that the part of the above-mentioned concept of self-definition related to the right of a group to assert itself as indigenous and be recognised as such is contained in article 8 of the UN Draft Declaration on the Rights of Indigenous Peoples.(13)
66. Los representantes indígenas opinaron que no era necesaria una definición de la expresión "poblaciones indígenas", y que las poblaciones indígenas tenían el derecho a identificarse a sí mismas como indígenas y a ser reconocidas como tales".(12)
Ib1. Difference with minorities. Indigenous peoples have different arguments to distinguish themselves from minorities. From the historical point of view, the minority rights have born in Europe, from 17 th century religion wars and the modifications of the borders after the two world conflicts. The historic and ethnic origin of indigenous peoples is much more distinct from the dominant society, whilst Europe, for instance, is basically unified by the ancient culture and Christian religion. Many minorities are to greater or lesser degrees integrated into the populations of the State in which they live, do not object to be treated as national citizens and often seek only to practice their own religion, language or culture.In general all the instruments regarding minorities in international law, are applicable to indigenous peoples (see in particular art. 27 of ICCPR, of which, the use also in favour of indigenous peoples has been sanctioned by the Human Rights Committee’s General Comment on the article(14)). However in the last 20 years, the UN has started to differentiate the organs of elaboration of documents relating to minorities or to indigenous peoples and obviously the documents themselves, accepting in this way the point of view of indigenous peoples.This has happened in particular because all international human rights instruments relating to minorities contains rights of the person belonging to minorities (as art. 27 ICCPR or the ‘Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities’). Instead the rights of indigenous peoples as expressed in the reports of the WGIP or in the draft declaration, are primarily collective by nature, although they may also have an individual component.The importance of collective rights makes indigenous peoples insist a lot on their difference with minorities, stressing often the argument of the ancient occupation of a particular land. Furthermore this attitude is also part of a wider political strategy to achieve the recognition of ‘peoples’ qualification, with all that follows in term of the right to self-determination.(15) Ic. A definition for this work? The working group grappled with the question of defining ‘indigenous’ during its second and third sessions; ultimately it opted for a flexible approach which could not require formal adoption of a definition, although some governments have a different view;“Existen una serie de desventajas potenciales al buscar formular una definición comprehensiva, universal, de ‘indígena’. Primero, la diversidad del mundo de los pueblos indígenas es tal que no es probable que ninguna definición en particular capture la amplitud de su experiencia y de su existencia, sino que en realidad puede excluir a grupos particulares en sus esfuerzos para establecer una categoría definida de ‘pueblos indígena’. Segundo, los esfuerzos realizados por la comunidad internacional para elaborar una définicion obligatoria, inclusiva, son proclives a insumir una considerable cantidad de tiempo y energía, distrayéndola de otras actividades más fructíferas”.(16)In line with this reasoning, that seems to be appropriate, and for all the doubts expressed above, a precise definition of indigenous peoples will not be drawn here. Nevertheless the Martinez-Cobo definition would be used as point of reference for the aims of this paper. The question of recognition of indigenous peoples and recognition of their rights has been progressively faced and considered in a deeper way in the last fifty years. They have managed to distinguish themselves from minorities, to assert the existence of collective rights at the international level and to underscore the importance of the criteria of self-definition. Nevertheless it should be considered how this criteria is still the object of big discussion because of the possible risks or discriminations it can carry with it. One case is the non-recognition of a person as indigenous by the group when born from an indigenous woman and a non-indigenous man, while being recognised in the opposite situation of an indigenous father and non-indigenous mother.For this reason, it seems of capital importance to consider this criterion as linked with the objective elements considered above and taking into account human rights international standards. For the scope of this paper two of these elements have to be underscored in particular: the link with the land and the link with environment.(17) The meaning of these links will be analysed in the third chapter. That part will look at how the land and the environment are part of a holistic vision of the world and have an important spiritual value in indigenous peoples' society and how this makes them so different from non-indigenous cultures.
Chapter IICollective Rights. The concept of collective rights is actually one of the more confusing in international law. It is very difficult to discern its various aspects, since it is linked with questions as the definition of peoples, the right to self-determination and autonomy.In general, the opponents of collective rights underscore the risk that these latter can overwhelm individual rights and impose a kind of ideology of the superior value of group wellbeing over the individual right to differentiate one-self position within a group. One view in favour(18) tries, instead, to stress the fundamental link and not the opposition between the collective and individual feature of a right. It recalls the social dimension of the human-being for its self-definition and some important guarantees to avoid the risk above mentioned: a) the voluntary participation or not-participation of the members of the group to this latter's life and values; b) the non-opposition of collective rights to fundamental rights and freedoms; c) the representativity within the group in taking decisions.Some scholars, like Prof. G. Alfredsson,(18) tend to distinguish the concept of collective rights in two different ones: group’s rights and peoples' right. The first regards the rights pertaining to the group as such and are exercised by the group itself or by its members; the origins of this kind of rights are in the work revindication made by trade unions and labour organisations, then englobed in many ILO documents. In the same way, also the instruments regarding women and children can be understood in these sense, although for these latter, the group is more the reason for a range of rights, that are individual in their essence. The biggest evolution regarding group rights is maybe the field of minorities, where both art. 27 of the ICCPR and the Minorities Declaration of 1992, although concerning the person belonging to a national, linguistic, religious or cultural minority, foresee the group component in the exercise of the rights set down.The second 'division' of collective rights regards the rights of peoples, in particular the right to self-determination and other rights called 'third generation rights' or 'solidarity rights', as the right to development, the right to peace, the right to a healthy environment and the right to the control and enjoyment of national resources. These rights, that see the collectivity, the people, as the mean by which individuals can enjoy them, are the ones related most to indigenous peoples and the object of major controversy.The first paragraph will now focus on the question of self-determination since this right is a prominent one among collective rights. It is directly linked with the debate on the use of the term ‘peoples’ when put beside ‘indigenous’ and it is a very important issue for indigenous peoples, States and in the discussions of the UN Working Group on Indigenous Populations. The following paragraphs will then deal with two collective rights that are direct object of this paper, the right to land and the right to environment.
IIa. The question of the term 'peoples' and the right to self-determination. Since 'peoples' are suppose to be the natural actors or recipient of the right to self-determination according to the UN Charter and the common art. 1 of the two Covenants of 1966, the use of this word beside 'indigenous' has assumed an enormous significance.The Martinez-Cobo report started using only the term 'populations', but then it added the term 'peoples' in the definition proposed. The Working Group on Indigenous Populations adopted the term 'peoples' in its reports heading since the 7 th Session and the draft declaration itself has been using the term 'peoples'. The ILO changed the term 'populations' of Convention 107 to 'peoples' of Convention 169, though adding that:"The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law".(19)The controversy is alimented by the fact of using different expressions like 'UN Voluntary Fund for Indigenous Populations' and 'indigenous rights' or 'indigenous persons' (Child Convention, 1989). In 1989 a UN resolution proclaimed 1993 as the 'International Year of the World's Indigenous People' using 'people' (that refers to the individuals rather than to the group). This resolution set a negative precedent in further international documents, as the use of 'people' was confirmed, after hard discussion, in the Rio Declaration on Environment and Development (1992), and in the Vienna Declaration of the World Conference on Human Rights (1993).All this sensitivity around the use of a term is originated by the question of self-determination. In principle indigenous peoples as such should enjoy this right, asserted as the basis of the most important UN treaties (the Charter and the two Covenants). Since the UN is formed by States, which build rights for themselves, these latter quickly limited the extension of this principle only at the case of de-colonisation (res. 1514 of 1960, called 'Declaration on the granting of independence to colonial countries and people') according to a specific procedure (res. 1541/1960). The limitation of the right to self-determination to the particular process of de-colonisation of the '60s, involving in particular way African countries, was confirmed at the end of the decade by resolution 2625 (1970). This latter posed the principles of territorial integrity or political unity of sovereign and independent States as the basis of friendly relations between States. It is difficult to understand how self-determination principle, so basic for the exercise of other human rights, can be really exercised if it could only be implemented following the borders already settled by colonising States. Basically the right of States to territorial integrity has changed the right to self-determination to a simple right to de-colonisation.After that, other two cases of possible exercise of this principle have been added: one referring to the liberation of occupied territories (confirmed in the Vienna World Conference on Human Rights and exemplified mostly by Palestinian territories occupied by Israeli). The other possibility that seems to exist, is the one examined in a report on constructive national arrangements for minorities, submitted to the UN Sub-commission by the Special Rapporteur Asbjorn Eide, according to who,"When the government does not allow all the segments and all the peoples to participate, the question of the right to self-determination of the different components becomes more pertinent".(20)The argument of non-representation of all the components of the State in the national government has often been mentioned in the case of South Africa.This argument has been supported in the Vienna Declaration (paragraph 2, last sub-paragraph) adopted by the World Conference on Human Rights of 1993, even if the principle of no-secession seems to prevail. Apart from these ones, other applications of the right to self-determination regards more the internal than the international law, as in the case of agreed separation of States (Czechoslovakia, breakaway of Eritrea from Ethiopia) or the execution of a referendum about this possibility as in Quebec.As for the case of de-colonisation, also for the case of occupied territory and of systematic non-representation in the national government, many arguments could be advanced for the inclusion of many indigenous peoples in these ideal-types.The draft declaration of the WGIP affirms clearly the right of self-determination of indigenous peoples, using the wording of art. 1 of the two Covenants, but then seems to link this right to the right to autonomy or self-government (art. 31). This ambiguity has not been cancelled by the comment of the WGIP President, Mrs Erica-Irene Daes, according to which, the principle of self-determination was intended only in its internal sense, with no intent to encourage the formation of independent States(21). This differentiation of self-determination into external and internal seems to be one of the biggest arguments of debate during WGIP sessions:"Adding the internal aspect to the list of possible meanings of self-determination could serve to introduce or rather reinforce the attractive and necessary components of democracy and autonomy. But, to the degree the addition is intended to serve as a mere pacifier and as a way of avoiding external self-determination, as the case may be in WGIP, it is misleading and it may create false expectations because people are not going to get what they are bargaining for. The label of 'internal self-determination' for autonomy and democracy does not in itself offer improvements while it can lead to disappointment. Political rights, political participation and autonomy certainly enhance equality for and dignity of indigenous peoples, but they fall short of granting the right of self-determination and the international law-makers are not willing to grant that right."(22)The Inter-American Commission on Human Rights (IACHR) of the Organisation of American States is the only international body to have directly addressed the issue of whether indigenous peoples have the right to self-determination. In the context of Miskito Indian complaints of various human rights violations by Nicaragua, the IACHR considered that, according to the present status of international law, the right to self-determination could never justify disrupting the territorial integrity of a sovereign State. In the same context the commission affirmed as well that the absence of any right to self-determination does not grant to Nicaragua an unrestricted right to impose complete assimilation on those Indians, but rather special protection with an adequate institutional order.(23) This comment is very important since, at the moment many indigenous peoples are more interested in having a large autonomy within their State than secede from this latter.One argument in favour of indigenous peoples’ sovereignty and self-determination is the conclusion of treaties with the ancient colonising States or their successors, as in the case of American Indians with the British Royal Crown, Canada and United States or Maori in New Zealand. The risk in this case can be first of eliminating ‘a priori’ the question of self-determination for the indigenous peoples who have not sign to any treaty and second of generalising all the treaties intervened without distinguishing from one case to the other. The Special Rapporteur Miguel Alfonso Martinez has submitted a wide report on 'Treaties, agreements, and other constructive arrangements between States and Indigenous Populations'. These treaties, often very important in recognising boundaries and indigenous peoples’ attribution of sovereignty, have been eliminated by unilateral acts of States, by legislation, or by court decision, without indigenous consent. Their concerted reassessment can have an enormous utility in giving back to indigenous peoples the confidence in the State as counter-part. IIb. The right to land. The right to land, usually protected in international and national laws under the right to individual property, assumes a completely different consideration when it comes to indigenous peoples. The reason is in the particular conception indigenous peoples have of land. For them land is not only a mean of production or a possession, they consider that the land is part of the total environment in which they carry on their life. They do not own the land but the land (the 'Mother Earth') owns them and generate them as sons. For this reason the link with land has such a spiritual value (the case of Mapuche, in Chile, is an emblematic one).(24) In this sense they do not conceive land as a good, so they use it in common (that explains why their right to land is a collective one). In the same way many times they do not have legal title proving their individual property, because it is not in their culture.The history of indigenous peoples is, to a large extent, the chronicle of their unsuccessful attempts to defend their land against invaders. In the past the seizing of land was part of acts like mistreatment, enslavement and killings of indigenous people with the excuse of their conversion to Christianity and their 'civilisation'. The making of treaties was another way to gain lands avoiding the immediate retaliation of natives by the way of fraud. Practices of removal, extinguishment of rights and dispossession then completed the taking of indigenous peoples' land.Subsequently, more sophisticated ways were elaborated: one was the doctrine of terra nullius , according to which the lands not occupied or not rationally exploited could be expropriated. The other system was through imposing notions of private property ownership, taking as consequence the possibility for people from outside to buy or occupy indigenous lands because of the lack of legal title of indigenous peoples to prove their ownership of the land.The lack of a legal title and the non-recognition of their special link with their territories has been used by States until our days to expropriate indigenous peoples lands for development projects, military occupation, border security, division in small private properties to be sold to individuals or for tourism projects. In other cases, States have recognised indigenous peoples’ right to land but neither have implemented it, nor have protected these lands from exploitation companies or from people interested in their resources. Many times States have not made a distinction between the lands and the resources of the subsoil, attributing to themselves the permanent sovereignty over these latter and allowing for exploration and exploitation projects in indigenous peoples’ lands without consulting them or compensating them for the loss of land or the damage received."Oil and gas exploration and exploitation, geothermal energy development, mining, dam construction, logging, agriculture, ranching and other forms of economic activity in the national interest, have adversely impacted both indigenous peoples who have already suffered from contact and colonialism, as well as indigenous peoples in areas long isolated by distance and geography. Often, development takes place without indigenous peoples' consent, consultation, participation, benefit, etc.".(25)At the international level, indigenous peoples' special link with their lands and territories has been underscored in the Martinez-Cobo report. ILO Convention 169 has fixed many of the arguments in favour of the protection of indigenous peoples' lands and territories. It recognises the collective character of the relationship of indigenous peoples with land and it considers the concept of land as covering the total environment of the area they occupy. Nevertheless it seems quite generic in allowing the relocation of indigenous peoples without their consent and without indicating in which special cases it can happen, saying only that a clear procedure where indigenous peoples have to be represented is necessary. Furthermore, it leaves to the State a large autonomy on the questions of replacement with lands of equal value to the ones expropriated, of compensation, and in retaining the ownership of the subsoil (art. 15.2). The UN WGIP draft declaration seems to be much more precise in fixing the principle of consent of indigenous peoples for their removal and in recognising to indigenous people the collective ownership of land and natural resources (air, flora, fauna, waters, coastal seas, sea-ice) interested. Furthermore, the principle of free and informed consent for any project affecting their land or resources is fixed without exceptions in art. 30. It has to be seen how much of this will remain in the document to be voted by the General Assembly.For sure compromise is necessary, because indigenous peoples cannot hope to recover the whole ownership of the lands they use to occupy centuries ago, but still, States recognition of their right to land fall short of an acceptable level. IIc. The right to environment. The link of indigenous peoples with nature is a very complex one: the environment assumes an essential meaning in their spirituality. It englobes all the elements of their cultural and religious reference: the wind, the sky, the forest, the rivers and the mountains with all the animals and plants living in their particular natural space. Furthermore indigenous peoples have built along centuries a very symbiotic relation with their environment, so that the protection of environment is essential for their survival and in the meanwhile the recognition of indigenous peoples’ rights is also determinant for the conservation of bio-diversity.“Los pueblos indígenas tienen la mayor diversidad cultural del mundo y viven en las zonas de mayor diversidad biológica. Hemos alimentado la variedad de especies durante miles de años...El conocimiento indígena y nuestra protección de la biodiversidad se basan en que nuestros territorios son inalienables, de propriedad colectiva y relacionados de modo holístico con todos los aspectos de nuestra vida material y spiritual”.(26)The evolution of the right to environment dates back to last century, with the first proposals for agreements to conserve wildlife. The first important act at UN level was the 1949 Conference on the Conservation and Utilisation of Resources. During the 1960s the global extent of resource depletion and environmental degradation come to the fore. The excessive economic growth, tanker disasters on the high seas or in territorial waters, contamination of waters, harmful chemicals, waste discharge, the testing of nuclear weapons, population growth, wasteful consumption patterns and unrestricted use of world's natural resources.The Stockholm Conference was the first intergovernmental global conference on environmental issues. A preparatory Committee established in 1969, drew up a draft declaration that was object of strong discussions between developed and developing countries. The Declaration consisted of 26 Guiding Principles related to several points: the human right to a healthy environment, the management of natural resources, the correlation between development, the rights and obligations of States under international law and the role of international institutions. Much debated was article 21, which reaffirmed the principle of permanent sovereignty over natural resources as well as State’s responsibility for transboundary environmental damage. The Conference did not mention indigenous peoples but in Recommendation 95 recognised the importance of cultural considerations in the preservation of environment.In the meanwhile new principles, as the interests of present and future generations, were proclaimed in the World Charter for Nature, a non-legally binding document drafted in 1979 by a task force of the International Union for Conservation of Nature and Natural Resources and adopted by the UN General Assembly in 1982.In 1985, the World Commission on Environment and Development (WCED), or 'Brundtland Commission', established an Expert Group on Environmental Law in order to prepare legal principles to support environmental action and sustainable development. Also WCED recognised the importance of cultural justification to protect the environment.(27) In 1988 the General Assembly endorsed the Brundtland report(28) containing the concept of Sustainable Development, and a year after called for a global conference on environment and development. Indigenous peoples had their link with environment and bio-diversity concerns formally recognised at the UN Conference on Environment and Development (UNCED).After four preparatory negotiating sessions 176 States, several dozen international organisations and thousand NGOs converged in Rio de Janeiro for two weeks in June 1992. The purpose of the Conference was to elaborate strategies and measures to halt and reverse the effects of environmental degradation. UNCED adopted three non-legally binding instruments: the Rio Declaration on Environment and Development, a Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forest (the Forest Principles); and Agenda 21. Two treaties were also opened for signature at UNCED: the Convention on Biological Diversity, and the United Nations Framework Convention on Climate Change.Indigenous peoples shown their big interest in the UNCED, also known as the ‘Earth Summit’, with their meaningful participation and with the convocation in the months previous to UNCED of the ‘Kari-Oca Conference’. This Conference had as result the ‘Kari-Oca Declaration’ and the Indigenous Peoples Earth Charter, two important documents through which many indigenous peoples explained clearly their conceptions and proposals about land, bio-diversity and development.Indigenous peoples’ link with environment is mentioned in many documents of the ‘Earth Summit’. The Rio Declaration in Principle 22 affirms that: “Indigenous People and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development”. The Convention on Biological Diversity (CBD) recognises the important role of indigenous peoples in the sustainable use of biological diversity in art. 8.j.(29) Next chapter, in the part dealing with indigenous peoples’ link with environment and sustainable development, will focus on the debate about art. 8.j of the CBD and the references to indigenous peoples in the other documents adopted in Rio ’92, as the Forest Principles (par. 2.d, 5.a, 6.d, 8.f, 12,d), and Agenda 21 (Chapters 11 and, particularly, Chapter 26).ILO Convention 169 of 1989, in the Preamble calls “ attention to the distinctive contributions of indigenous and tribal peoples to the cultural diversity and social and ecological harmony of humankind... ”. Part II stresses as environment is implied in the concept of land in art. 13 while art. 15 underscores the indigenous peoples’ right to participate in the use, management and conservation of the resources pertaining to their land and their right to be consulted before undertaking activities that affect the resources pertaining to their land and to participate in the benefits of the above-mentioned activities. The Draft Declaration on the Rights of Indigenous Peoples recognises in the Preamble “ that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment ”. Art. 28 provides for indigenous peoples’ right to conservation, restoration and protection of their environment, and to receive assistance from States and international co-operation. It points out to the need for agreement of indigenous peoples for military activity to take place on their territories. It then states that no storage or disposal of hazardous materials shall take place in their territories and that programmes should be implemented to monitor and maintain and/or restore the health of indigenous peoples affected by such materials. Art. 30 regards development projects affecting indigenous lands and resources. It provides that indigenous peoples have the right, not only to be consulted by States (as in ILO Convention, art. 15), but also to require that States obtain their free and informed consent prior to the approval of any such projects. Compensation provision is stressed to mitigate adverse environmental, economic, social, cultural or spiritual impact.The next chapter will focus on the link of indigenous peoples with land and environment from a spiritual and a more instrumental point of view. This part will examine how the indigenous conception of land is a distinct one and how the recognition of indigenous peoples’ rights is functional to environment protection.
Chapter III.Indigenous peoples’ link with land and environment. The aim of this Chapter is to show how the concept of land and environment are inextricably linked in indigenous peoples’ perspective.“Para los indígenas un territorio no es sólo el suelo, ni un conjunto de parcelas. Tampoco su uso se relaciona primordialmente con el mercado. El territorio, en su aspecto económico, es un conjunto integrado de recursos en interrelación y rinde más al pueblo que lo disfruta cuanto más entero se encuentre, cuanto menos transformando esté. Es por esto que se sienten tan sorprendidos cuando, como ocurre con la legislación de los países amazónicos, se separan como cosas distintas el suelo, el bosque, la fauna, el agua y el subsuelo. Separar un suelo amazónico de su cobertura forestal es lo mismo que separar un corazón del cuerpo que lo aloja. Los suelos amazónicos son pobrísimos en nutrientes y es la cobertura forestal la que se los suministra”.(30)This link will be analysed through a cultural point of view, so to show the different approach to environment that indigenous peoples (IP) have respect to our anthropocentric conception, and through a functional point of view, to show how the recognition of indigenous peoples’ rights is an advantage to the protection of environment. IIIa. The cultural value. Indigenous peoples’ cosmology. The value of land and environment in indigenous culture is based on a holistic vision of their territory where the entire animal and vegetal world acquires particular meaning, a value that is fundamental for the reproduction of the life of the rest. Mountains, valleys, rivers and lagoons that identify themselves with the existence of an indigenous people and that give to this latter their means of sustaining. The richness inherited from their ancestors and the heritage these peoples have to pass to their descendants. A space where every little part, every manifestation of life, every expression of nature is sacred in the memory and in the collective experience of a people and is shared with all the living beings in respect of their natural evolution as guarantee of mutual development.All this can be identified as the environment for indigenous peoples.In IP’ conception, human beings are included in the overall picture and this makes an enormous difference with no-indigenous approach. The relationship between human being and environment, in occidental culture for instance, has always been one of struggle for domination, exploitation, control to avoid possible risks and modification in a friendlier place to profit from. Also the protection accorded to nature has always had an instrumental character, based on our necessities to live in a healthier environment, either on a strict (health) or large (social) point of view. Although in the last years some conceptions of protection of environment, based on the intrinsic value of animals, plants and nature in general, have been spreading, our approach remains undoubtedly anthropocentric.As mentioned in the first two chapters, the link of Mapuche ('People of the Earth') with the land and the environment is a very elaborated one.(31) Chapter V will show how every one of the originary groups composing this quite decentralised people has a name depending on the natural context that it inhabits. The Mapuche-Pehuenche are the group involved in the case (the building of a series of dams on the Biobío river) that is object of study in Chapter VI. Their name means People ( che) of the pine tree nut ( Pehuen). Their case demonstrates how the environment has a capital importance for the material and spiritual life of Mapuche people and of indigenous peoples in general.Connected with this different conception of environment, there is also a distinct structuration of society. In an indigenous society, the transmission of the knowledge about world creation, the heroes and myths, the practical knowledge about the building of a place where to live or of the accessories for the daily work, the knowledge about the roles and responsibilities of people and about the techniques to profit from natural resources is made in an oral form. This happens during daily life as during rites and celebrations. Often, because indigenous peoples are not familiar with written language, the dominant society assumes a pejorative qualification for them, as ‘illiterate’, without taking into account that this oral transmission is very dynamic in the re-elaboration of practices and knowledge and very functional in the integration of youth in their society.Indigenous societies have managed to elaborate mechanisms for every individual to be able to stay in relation with natural resources in a rational and not destructive way. Everyone is prepared to perform the duty that the society assigns to him/her. Often gender is the only criteria of work-division: in some cultures men prepare the lands for the cultivation and women plant and collect the products, creating a strong interdependence between both the sexes. In general every individual is prepared to deal with every duty necessary for social life, in this way creating, in many cases, a society without classes. This system is strongly linked with the fact that the environment is the principal source of richness of indigenous peoples:In this sense the land becomes a vital element for the cultural reproduction of the society and for its survival. The link with their land and their environment is the feature that more clearly distinguishes indigenous peoples from the other groups.
- Nature is an open possibility for every one in the measure that its extension is enough to satisfy the necessities of the people.
- The appropriation of the natural resources by one individual lasts as much as the use of it, of the effective enjoyment, without meaning the acquisition of any definitive right over these resources.(32)
- The functioning of the society does not allow for the individual storage of manufactured resources or natural products as form of power or richness concentration.
- Individuals could not survive without the knowledge necessary to profit from environment without destroying it.
- This reciprocity system guarantees richness redistribution and strengthens solidarity within the society.
“Los grupos humanos que son obligados a abandonar y ver desaparecer el lugar en que han vivido durante generaciones, sufren múltiples traumatismos. Los diferentes tipos de pérdida: afectiva, emocional, psicológica, intelectual, cultural y material, predisponen a los relocalizados a contraer enfermedades de riesgo –muchas veces mortales-, dañan la autoestima, disminuyen el repertorio cultural de respuestas frente a las nuevas condiciones y dan lugar a situaciones de involución económica...The threats to the environment that could destroy indigenous territories as well as exploitative actions on indigenous lands that degrade their system of survival can jeopardise the most important human rights of self-preservation as right to life and the right to physical integrity and the security of person. These latter are integral part of the most spread human rights documents and regarded as ‘jus cogens’ that requires the governments to take affirmative action to protect them.This different conception of land and environment requires envisaging particular rights for indigenous peoples. To solve the debate between the opponents of collective rights as dangerous for the individual and supporters of collective rights as defence against ethnocentrism, Kymlicka(34) has proposed to distinguish two possible kinds of restrictions linked with group’s enjoyment of different rights. The first kind regards restrictions over the group’s members, ‘internal restrictions’, for the well being of the group; when they do not protect the freedom of dissent within the group, they can be seen as dangerous. The second kind is related to the restriction imposed over the wider society of which the group is part, to protect this latter from the impact of external decisions affecting group’s relations, link with land, resources, language, religion and culture. It is called ‘external protection’ and can justify the restriction of some rights pertaining to people outside the group as a necessary condition to pose the various groups of the State at an equal footing. According to Kymlicka, internal restrictions to the individual right to question and revise traditional practices and authorities are to be refused, while ‘external protection’ from out-of-group people’s rights has to be defined and implemented.For instance, the special relation indigenous peoples have with land and environment would justify collective ownership of land that cannot be sold or exploited without the consent of the community.(35) This option would permit to guarantee to indigenous peoples the ownership of land without using the concept of individual private property that does not pertain to their conceptions. This would imply as consequences, ‘internal restrictions’ to the rights of indigenous individuals to dispose of a proper private property within indigenous territory, and ‘external protection’ restricting the right of no-indigenous individuals to accede and make business with these lands.These restrictions would be a necessary way to avoid the actual practices that don’t understand the special link of indigenous peoples with their lands.
La pérdida del territorio étnico es especialmente grave ya que implica la ruptura de milenarios y equilibrados procesos de interrelación hombre-cultura-medio, que da como resultado la pérdida de recursos y la cancelación de multitud de conocimientos y prácticas: manejo del clima y el medio, técnicas productivas, estrategias laborales, acceso a productos naturales, creencias, costumbres, sitios de culto religioso y práctica terapéutica, etcétera; de gran relevancia para la supervivencia física y cultural del grupo. Por lo tanto, su pérdida no significa sólo la pérdida de un medio de producción intercambiable por otro de similar magnitud: para los pueblos indios la tierra es historia e ideología; la tierra es cultura”.(33)“When the government took our land...they wanted to give us another place...but the State, the government, will never understand that we do not have another place to go...The only possible place for (indigenous) people to live and to re-establish our existence, to speak to our Gods, to speak our nature, to weave our lives is where our God created us... We are not idiots to believe that there is possibility of life for us outside of where the origin of our life is. Respect our place of living, do not degrade our living conditions, respect this life...The only thing we have is the right to cry for our dignity and the need to live in our land”.IIIb. The instrumental value. The relationship between indigenous peoples’ rights and the protection of the environment. There is another important perspective to look at the link between indigenous peoples and environment. It is the relation between the recognition of the rights of the former and the protection of the latter. In this sense the link assumes a functional value in the sense that, potentially one element can benefit the other and vice versa. As Etxeberria recalls:
(Co-ordinator of the Indian Nations Union, 1985)(36)“En la relación indígena con la tierra hay un elemento que hoy está muy en boga y que concreta un nuevo desafío: se resalta con gran fuerza que esa relación, desde la cosmovisión ecocéntrica en la que está englobada, es profundamente ecológica, frente a la tradicional relación depredadora de la naturaleza de la cultura occidental...Probablemente la realidad de la relación indígena con la naturaleza es más compleja y variada –con sus conradicciones- que lo que esa imagen sugiere...Pero no es menos cierto que, en conjunto, viene de los pueblos indígenas el desafío de recomponer decididamente nuestra relación con la naturaleza en la línea de las exigencias ecológicas, con los cambios no sólo económicos sino culturales que ello pida. Hay además espacios geográficos fundamentales para la ecología del planeta en los que la causa indígena y la causa ecológica van de la mano. Recordemos que la opción por la Tierra es de hecho opción por la biodiversidad. Pues bien, los hábitats genéticamente más ricos están con frecuencia habitados por poblaciones indígenas que los han respetado con sus modos de vida, por lo que la protección de esas poblaciones y sus culturas y la de esos hábitats hacen causa común”.(37)The analysis of this relationship between indigenous peoples’ rights and environment protection could start from the following points:This Chapter would like to demonstrate that the relationship of indigenous peoples and environment is not so symmetric, in the sense that:
- Indigenous people (5% of the world population) are in many cases the inhabitants of the areas with the highest biological diversity, intended as richness in terms of natural environment.
- They have shown along centuries to manage to live in difficult environments avoiding damaging impacts on these latter, but instead developing techniques that fully respect and promote bio-diversity.
- Grave consequences to environment balance can come from IP’ displacement; this shows how environment protection needs IP’ rights recognition, in particular over their lands and resources.
- Irreversible damages to IP’ culture and material survival can be caused by intrusion, non-respect and destruction of their surrounding bio-diversity; this proves how indigenous peoples’ existence is based on environment conservation, restoration, promotion.
For what concerns assertion 1, the role of indigenous peoples in environment protection has been internationally recognised in Rio ’92.The Earth Summit has tried to reconcile the protection of the environment with the question of development, both elements pertaining particularly to the countries of the South, usually possessing both important bio-diversity areas and urgent need to develop themselves.This reconciliation has been done through the concept of ‘Sustainable Development’ (SD), defined in 1987 by the Brundtland Commission as the one able to satisfy needs of the present generations without compromising the options of the future generations. This complex concept is the result of an elaboration of the right to development not based only on economic values as the Gross National Product (GNP), but also focusing on every aspect -social, cultural, spiritual...- of human life, including the need to live in an healthy environment.
- It is quite sure that recognition of IP’ rights is functional to environment protection -in this sense point c) comes as direct consequence of points a) and b).
- The fact that environment protection is functional to IP’ well being depends on some conditions.
“El desarrollo sostenible se considera, por tanto, como un proceso continuado de cambios (y no un estado fijo) en el cual la utilización de los recursos, la orientación de la evolución tecnológica y la modificación de las instituciones deben ser acordes con el potencial actual y futuro de las necesidades humanas”.(38)This concept tries to include economic decisions in a wider vision that integrates the need to development of third world countries limited by environment’s and natural resources’ respect. Sustainable development has been accepted by UNDP in its reports on ‘Human Development’, which recognise that environment protection results in the long-term as fundamental to assure any process of development. SD requires a structural change in the productive systems, in the consumption styles and in the whole behaviour of society. This question is particularly important in the developing countries, where the need for rapid development and the lack of financial resources can take to an irrational use of natural resources and to the degradation of the environment.Linked to this, is the recognition of the indigenous practices as example of sustainable use of natural resources, starting from the fact that:“It has been estimated that 85% of all known plant species are situated in areas that are the traditional homelands of indigenous peoples. At the same time, between 50 and 80% of global species diversity are found in just twelve countries. In addition, tropical rain forests, which account for only 7% of the earth’s land surface and provide the habitat for 50 million indigenous peoples, are thought to contain well over half of the species in the entire world biota”.(39)Already in the Brundtland Report was recognised that these communities are the repositories of vast accumulation of traditional knowledge and experience that links humanity with its ancients origins. Their disappearance is a loss for the larger society which could learn a great deal from traditional skills in sustainable managing of very complex ecological systems. It is ironical that the more formal development reaches more deeply into the rain forest it tends to destroy the only cultures that have proved able to thrive in these environments.(40) Chapter II had mentioned Principle 22 of the Rio Declaration, which underscored IP’ role for environment management and development. Forest Principle 12.d says that [A]ppropriate indigenous capacity and local knowledge regarding the conservation and sustainable development of forests should, through institutional and financial support, and in collaboration with people in local communities concerned, be recognised, respected, recorded, developed and as appropriate, introduced in the implementation of programmes. Benefits arising from the utilisation of indigenous knowledge should therefore be equitably shared with such people. Agenda 21, a non-binding action plan on environment and development divided in 40 chapters, is maybe the most important document adopted at the Rio Conference since it contains detailed guidelines for the next century, referring also toadvisable international law evolution. Its chapter 26 is titled Recognising and strengthening the role of indigenous people and their communities . It recognises the special link of indigenous peoples with their lands and the need for their participation in every question directly or indirectly affecting them. It establishes objectives for governments and IGOs (26.3), measures to be undertaken by governments through international and national legislation (26.4) and other measures to be taken at the UN (26.5) as at the regional and national level (26.6). Particularly, in relation to indigenous peoples and environment (26.1), it stresses that [I]n view of the interrelationship between the natural environment and its sustainable development and the cultural, social, economic and physical well-being of indigenous peoples, national and international efforts to implement environmentally sound and sustainable development should recognize, accommodate, promote and strengthen the role of indigenous people and their communities .For what concerns point 2, namely the question of how environment protection is helpful in absolute to indigenous peoples, it is worth here to look at the Convention on Biological Diversity (CBD), a clear example of a document for environment protection with relations to indigenous peoples. The Preamble (par. 12) recognises the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its component.The Convention, a binding document adopted in Rio ’92 that entered into force in 1993 and was ratified so far by some 150 States, conceives biological diversity as the variability among living organisms from all sources, including diversity within species, between species and of ecosystems (art. 2). Art. 1 of the Convention illustrates its objectives, namely:A Conference of the Parties to the Convention (COP), supported by a scientific and technical committee, supervises and controls the implementation of CBD.Article 8 regards In-Situ Conservation that means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings... In part (J) it refers to indigenous peoples, saying that Each Contracting Party shall, as far as possible and as appropriate : Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.Basically art. 8(j):
- the conservation of biological diversity;
- the sustainable use of its components;
- the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources.
Indigenous peoples have raised many perplexities about this article and the Convention in general. Those perplexities come from the fact that CBD gives scarce recognition to IP’ rights and that in the preparatory works and the drafting, little attention was devoted to indigenous peoples’ experience and management ability.
- restates the principle of States’ sovereignty over natural resources, already affirmed in art 3 (that replies exactly Principle 21 of the Stockholm Declaration of 1972);
- confirms the three pourposes of the Convention (art. 1), relating them to indigenous peoples;
- entrenches the provisions made in the Preamble.
“Nosotros, los pueblos indígenas, hemos vivido en los bosques tropicales del mundo desde tiempo inmemorial. Somos los primeros propietarios del bosque y durante toda la Historia hemos alimentado su biodiversidad mediante habilidades y prácticas basadas en la amplia experiencia, una amplia variedad de conocimiento y una comprensión holística de nuestro medio ambiente. Nuestros bosques nos proporcionan vida, modelan nuestra identidad como pueblos y estructuran los límites de nuestros territorios. El destino de los bosques está íntimamente vinculado con nuestra supervivencia y requiere el reconocimiento de nuestros derechos indígenas...Some of the main worries of indigenous peoples in relation to CBD are focused on national sovereignty over natural resources, the concept of ‘communities’ and the conception of ‘traditional’ in art. 8(j), the creation of protected areas in art. 8(a), the access to genetic resources. In relation to sovereignty over natural resources reserved to States as stated in art. 3 and implied in art. 8(j), indigenous peoples see the risk of considering it as the affirmation of State’s rights over indigenous resources without recognising their ancestral rights and their right to obtain the State’s obligation to require their free and informed consent to make use of their resources. Moreover, the sentence ‘subject to its national legislation’ could allow any State to ignore the duty to ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities’ if its national legislation does not provide in this sense. In relation to the concept of ‘communities’ as used in art. 8(j), CBD does not give any definition of what is intended by ‘community’. If it means the local group as part of anindigenous peoples (as it seems to be putting it beside ‘local communities’) or it is a way not to use the term ‘peoples’. Nevertheless talking of ‘communities’ is already an important step in the recognition of collective rights. The danger in the use of the term ‘traditional’ is one of giving the impression of seeing indigenous peoples as primitive, static entities, always equal to themselves not able to evolve. In this sense the definition has been much criticised by anthropologist and jurist as a way to exclude any indigenous peoples who do not seem to reflect this idea of ‘traditional’. For what concerns the establishment of protected areas where special measures have to be adopted to conserve biological diversity, the risk that indigenous peoples see is one of not be recognised entirely as the owners of every protected area in their territory. This would entail that every activity would be carried out without indigenous control and consent. In general the Convention should establish in a stronger way the principle of free and informed consent for every project or activity affecting indigenous territories and resources, as it is expressed in the form of ‘approval and involvement of the holders of suck knowledge’ of art. 8(j). The question of free and informed consent is also of the provision on the access to genetic resources since the Convention seems, by the recognition of States’ sovereignty over natural resources in art. 3, to attribute to these latter and to their legislation the control over all the genetic resources. This opens the way to bioprospector transnational companies to explore indigenous peoples’ genetic resources if States allow for that.Those are some of the objections posed by indigenous peoples to CBD and its art. 8(j), and this shows how the purpose of protecting environment can go against indigenous peoples’ rights, the right to physical and cultural survival, the right to their ancestral territories and the natural resources pertaining to them, the right to their own way to development. In this sense, prior to the establishment of this complex relation between indigenous peoples’ well being and environment protection, there should be recognised: firstly indigenous peoples’ collective rights, secondly indigenous peoples’ effective participation on every decision related to them and the principle of free and informed consent on every project or activity affecting their rights.
El único modo de asegurar que los pueblos y los bosques indígenas sobrevivan es reconocer nuestros derechos como pueblos indígenas que viven en nuestros propios territorios, respetando nuestras distintas culturas, instituciones políticas y sistemas jurídicos consuetudinarios, permitiéndonos los medios para llevar a cabo nuestro propio desarrollo sostenible”.(41)“Cualquier estrategia de Desarrollo Sostenible en territorio indígena debe partir del reconocimiento del hecho indígena como una realidad cultural y política viva, activa, capaz de tomar las riendas de su desarrollo y de decidir qué tipo de contribución pueden y desean hacer a la comunidad mundial. Los agentes de desarollo trabajando en zonas indígenas deben tener en cuenta que, para los indígenas, el vínculo entre identidad, biodiversidad y Naturaleza es una cuestión vital para su superviviencia étnica. Y que si se quiere mantener el medio ambiente es necesario apoyar los derechos, la supervivencia y el robustecimiento cultural de estos pueblos, y no, como se ha hecho hasta ahora, centrar el interés en el mantenimiento de zonas ecológicas, ignorando y aislando a las personas que viven allí. Este punto debe estar en la base del entendimiento de los pueblos indígenas y del valor de sus comunidades y culturas”.(42)
Chapter IV.International instruments for the protection of indigenous rights related to land and environment.
This Chapter will assess the main international documents or procedures, which refer explicitly to indigenous peoples' rights or that can be used by these latter even if they are not directly devoted to them.In particular the Chapter will try to focus on the instruments that have been or can be used in relation to the protection of the land and the environment of indigenous peoples. Therefore this part will deal first with the UN bodies' procedures and other instruments (pertaining to Charter-based or Treaty-based bodies), and then to the UN system with its Specialised Agencies. The ILO and the World Bank will deserve particular attention since they adopted specific instruments related to indigenous peoples. The last paragraph will concern the Inter-American System, because of the meaningful cases related with indigenous peoples dealt with by the Inter-American HR Commission and the drafting of an Inter-American Declaration on the rights of indigenous peoples. Moreover the Inter-American system is also relevant for the case of Mapuche people in Chile, case presented in the following chapters. IVa. The UN Working Group on Indigenous Populations. The first important undertaking of the UN towards indigenous peoples started in 1970 with the appointment of José Martinez-Cobo as a Special Rapporteur with the charge of preparing a Study on the Problem of Discrimination against Indigenous Populations . The long preparation of the report -submitted between 1981 and 1984- served to move an increasing attention towards indigenous peoples. First, in 1977 the ECOSOC granted the first observer status to an indigenous organisation, The International Indian Treaty Council (as of our days, 15 indigenous organisations have a consultative status with the ECOSOC). Secondly in 1982 the working group on indigenous populations (WGIP) was created.The Sub-Commission established the WGIP as its subsidiary organ. This latter is composed by 5 members and chaired by Mrs Erica-Irene A. Daes, from Greece. The 5 members are independent experts, already members of the Sub-Commission. The WGIP formal tasks, apart from facilitating dialogue between indigenous peoples and governments, are two:
- to review national developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous peoples;
- to develop international standards concerning the rights of indigenous peoples taking account of both the similarities and the differences in their situation and aspirations throughout the world.
“At its first session, the Working Group took the almost unprecedented step of allowing oral (and written) interventions from all indigenous organizations which wished to participate in its work, not limiting such participation to those with formal consultative status. Approximately 380 persons took part in its sixth session in 1988, including representatives from over 70 indigenous organizations and observers from 33 countries. As a result of this wide participation, the Working Group has provided a meaningful forum for the exchange of proposals regarding indigenous rights and for the exposition of indigenous reality throughout the world. While the Working Group reiterates at each session that it is not a 'chamber of complaints' and has no authority to hear allegations of human rights violations, it has nevertheless permitted very direct criticisms of government practices by NGOs, as a means of gathering data upon which standards will eventually be based”.(43)In 1985 a Voluntary Fund for Indigenous Populations was established providing financial assistance to representatives of indigenous peoples to attend WGIP sessions. Notwithstanding the low position in the UN hierarchy, the Working Group has served with great energy as a forum for discussion of indigenous questions in the UN system. It has generated seminars and has facilitated the proclamation of 1993 as International Year of World's Indigenous People (UNGA 1990), with the 1992 Nobel Prize Rigoberta Menchú as Goodwill Ambassador. The big work of the Working Group, also demonstrated by the enlargement of WGIP year sessions from 5 to 10 days, had influence on the Vienna World Conference on Human Rights (1993), where recommendations were made for the proclamation of the International Decade of World' Indigenous People and for the creation of a Permanent Forum for Indigenous People . Most important than all, the WGIP devoted some 7 years to the creation of the Draft Declaration on Indigenous Peoples . From the 14 principles elaborated in 1987 (5 th session), the Draft Declaration was completed in 1993 with a preambular introduction of 19 paragraphs and an operational part of 45 articles, divided in 9 sections.“The draft Declaration is a unique instrument of the United Nations system because it has been drafted with participation from victims of the human rights violations and the future beneficiaries of its provisions. While the draft Declaration is not an indigenous document, it reflects a broad consensus of an extraordinarily wide range of indigenous experiences. Contributors to the final text have included: traditional leaders; indigenous lawyers and activist; women's and youth organizations; survivors of genocidal State-sponsored policies against indigenous people; and community workers”.(44)The previous chapters have looked at different part of the declaration regarding the question of the definition of indigenous peoples, collective rights, self-determination, right to land, environment issues, principle of free and informed consent. This document, not legally-binding as the name 'declaration’ expresses, has been adopted by the Sub-Commission in 1994 and submitted to the UN Human Rights Commission for consideration. This latter, with resolution 1995/32 of March '95, has established an open-ended inter-sessional working group to consider the text submitted by the Sub-Commission and to elaborate a definitive draft for consideration and adoption by the General Assembly within the Indigenous Peoples' Decade(1995-2004). Since this working group is open to members of the HR Commission (although with procedures for the participation of indigenous peoples' organisations) and therefore not by independent experts but States representatives, it is not difficult to predict that the final draft will not be so progressive.The WGIP, after the drafting of the declaration for the Sub-Commission, has remained concentrated mainly with research activities on questions of particular interest for indigenous peoples. The most important are: the Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations (undertaken by Mr Miguel Alfonso Martínez since 1989), the Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples (containing also some draft principles and guidelines for the protection of the heritage of indigenous peoples) and the Study on the Relationship of Indigenous Peoples with Their Land , these two latter undertaken by Mrs Daes. These studies are very important because they make recommendations and proposals for guidelines that might serve as a basis for future international instruments for the protection of indigenous’ rights. In this sense also important is the Study on the impact of TNC on the lands, environments and human rights of Indigenous Peoples , requested by the WGIP to the former UN Centre on Transnational Corporations and concluded in 1994. IVb. Individual Petitions to the Human Rights Committee(45) Considering that the UN Declaration on Indigenous Peoples is a draft, therefore neither definitive, nor approved yet, the protection of indigenous peoples' rights has been mainly purchased through other ways. The most important one is the individual petition for violation of art. 27 of the ICCPR.Art 27 says: ” In those States in which ethnic, religious or linguistic minorities exists, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language ”. In principle it is aimed at the protection of individual members of minorities, but the practice of using it to protect indigenous individuals' rights has been confirmed by the Human Rights Committee (HRC) General Comment n. 23 on art. 27, where it is said: ” With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specially in the case of indigenous peoples”.(46)The first case under art. 27 related to indigenous peoples was Sandra Lovelace v. Canada(47), where the Committee decided in 1981 that the application of the Law over Indians forbidding the petitioner to live in the reserve because she got married wit a non-indigenous was a privation of its cultural identity and a violation of art. 27. The Federal Government of Canada changed the law in 1985. In Kitok v. Sweden(48), issued in 1985, the Committee accepted in 1988 that the decision of the village of Mr Kitok of not reintegrating this latter, because of another job that he had out of the community for a while, was a necessary restriction for the continued viability and welfare of the minority as a whole (para. 9.8).One of the most important cases regarding indigenous peoples' rights remains The Lubicon Lake Band decision.(49) In 1984 the chief B. Ominayak and the Lubicon Lake Band asserted that Canada had violated their right to self-determination, in particular their right to freely dispose of their natural resources, by expropriating part of the Band's territories, in order to grant interests in gas and oil exploration to private corporations. The HRC decided in 1990 that an individual application under art. 2 of the Optional Protocol to the ICCPR could only assert a violation of individual rights and that the communication was therefore inadmissible with regard to the alleged violation of art. 1 (self-determination). However, the HRC found that the application was admissible insofar it might raise issues under Art. 27 or other articles of the Covenant (para. 14). The Committee accepted many arguments of the applicant saying that [ h]istorical inequities, to which the State party refers, and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of Art. 27 as long as continue (para. 33), but it decided that a simple indemnisation was a satisfying remedy. The importance of this decision relies more in the question of admissibility, since basically the interpretation of the Committee recognised the right of self-determination as not encompassing individual rights and so as unenforceable under the Covenant, as confirmed by the 1991 Micmaq decision.(50)In the '90s three cases under art. 27 have regarded Sami people and Finland, both three related to projects affecting traditional indigenous land and environment. In Sara et al. v. Finland,(51) the authors, reindeer breeders of Sami origin, asserted that the adoption of a law (the Wilderness Act ) by the Finnish Parliament in 1990, to regulate logging activities in the north of Finland, would jeopardise the future of reindeer herding and therefore of Sami livelihood through authorising logging in areas used by the applicants for reindeer husbandry. In 1994 the petition was judged inadmissible for failed exhaustion of local remedies.In the case Länsman et al. v. Finland(52) the authors were the members of a Sami Herdsmen's Committee that traditionally occupies an area officially administered by the Central Forestry Board. This institution had signed a contract with a private company for the extraction of stone from the flank of a mountain, which used to be a sacred place of the old Sami religion, and also for the transportation of the stone through Sami reindeer herding territory. The applicants affirmed that this operation violates their right to enjoy their own culture, which is strongly based on reindeer husbandry. Therefore it was in breach of art. 27 of the Covenant. The applicant also asked for the adoption of interim measures of protection, under rule 86 of the HRC rules of procedure, so to avoid irreparable damages. In its decision of 1994, the Committee discarded the request of interim measures as premature. It then affirmed that the quarrying of the slopes of Mt. Riutusvaara in the amount that had already taken place had minimised the impact on any reindeer herding activity in the area and on the environment as conceived also in the quarrying permit. The HRC also underscored the importance of the consultation of the authors during the proceeding, as provided in the General Comment n. 23 to art. 27. Therefore it decided that art. 27 had not been violated, but stressed also that if mining activities in the Angeli area were to be approved on a large scale and significantly expanded by these companies to which exploitation permits have been issued, then this may constitute a violation of the authors' right under article 27 (para. 9.8). Very important for indigenous peoples in general is para. 9.3 of Committee's decision, where it affirms:”The right to enjoy one's culture cannot be determined in abstracto but has to be placed in context. In this connection, the Committee observes that article 27 does not only protect traditional means of livelihood of national minorities, as indicated in the State party's submission. Therefore, that the authors may have adapted their methods of reindeer herding over the years and practice it with help of modern technology does not prevent them from invoking article 27 of the Covenant”.(53)The third case, Jouni E. Länsman et al. v. Finland(54), has been initiated by other members of the same Muotkatunturi Herdsmen's Committee, this time to complain against the Central Forestry Board's plans to approve logging activities and the construction of roads in an area covering about 3.000 hectares situated within the traditional Sami winter herding lands. In 1996 the Committee basically replied the decision of the Länsman et al. v. Finland case, underscoring the importance of the consultation with the applicants, affirming its inability to find a violation of art. 27 on the basis of the amount of logging approved by the State's forestry authorities and considering that the allowance for logging on a large scale would constitute a violation of art. 27. At the end of the decision the HRC seems to have made a contradictory affirmation:”The Committee is aware, on the basis of earlier communications, that other large scale exploitations touching upon the natural environment, such as quarrying, are being planned and implemented in the area where the Sami people live. Even though in the present communication the Committee has reached the conclusion that the facts of the case do not reveal a violation of the rights of the authors, the Committee deems it important to point out that the State party must bear in mind when taking steps affecting the rights under article 27, that though different activities in themselves may not constitute a violation of this article, such activities, taken together, may erode the rights of Sami people to enjoy their own culture”.(55)Also in this case the HRC did not enter in the question of the right of decision over lands traditionally held by indigenous peoples. It did seem to agree rather with the ILO Convention n. 169, according to which the consultation with the people affected is a sufficient measure, than with the UN Draft Declaration that requires the free and informed consent of the people concerned.Another way that has been successfully exploited by indigenous peoples is the right to private life and familial life contained in articles 17 and 23 of the Covenant on Civil and Political Rights. The case is Hopu et al. v. France(56), decided in 1997 by the HRC. Two indigenous Polynesians, residing in Tahiti (French Polynesia), issued a petition against the building of an hotel complex in an area that contained an ancestral cemetery, existing prior to european arrival. They alleged that the building of this complex was a violation of various articles of the Covenant, among which arts. 17.1, 23.1 and 27. The HR Committee was unable to judge over art. 27 since the declaration made by France over this article (“in the light of article 2 of the Constitution of the French Republic, ...article 27 is not applicable as far as the Republic is concerned”) at the moment of ratifying the Covenant is considered by the HRC as a reservation (Comm. para. 4.3). It accepted instead the argument of the petitioners in relation to arts. 17.1 and 23.1.Art. 17.1 says: ”No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation” .Art. 23.1 says: ”The family is the natural and fundamental group unit of society and is entitled to protection by society and the State” .The Committee seems to have followed the example of the European Court of Human Rights, which in certain cases has widened the meaning of art. 8 (right to respect for private and family life, home and correspondence), to protect the right to environment (for example Lopez-Ostra case ). Indeed the HRC in its decision has considered that:“...the objectives of the Covenant require that the term ‘family’ be given a broad interpretation so as to include all those comprising the family as understood in the society in question. It follows that cultural traditions should be taken into account when defining the term ‘family’ in a specific situation. It transpires from the authors’ claims that they consider the relationship to their ancestors to be an essential element of their identity and to play an important role in their family life. This has not be challenged by the State party; nor has the State party contested the argument that the burial grounds in question play an important role in the authors’ history, culture and life”.(57)This decision could represent an important precedent and furthermore seems to be very important for the case dealt with in the next Chapters. IVc. Other UN treaties. Other UN treaties contain some provisions directly or indirectly linked with indigenous peoples. The ICESCR contains a list of non-justiciable rights (there’s no petition system), within which art. 11, about adequate standard of living, could be related to the question of land and forced relocation. The Convention against Discrimination (CERD) provides in art. 2.2 that States parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms... . The CERD disposes of a mechanism of individual petition (submitted to State’s recognition of the Committee’s competence) not used by indigenous people so far. The Convention on the Rights of the Child (CRC) has many articles that can be referred to indigenous peoples (arts. 5, 17, 20, 29, 30). In particular art. 30 provides that a child who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture... . The CRC does not contain any petition system. The Convention Against Genocide defines this latter as the methodic extermination of an ethnic, national, racial or religious group and considers it as crime against humanity under international law in time of peace or war. This crime is held imprescrittible and of universal jurisdiction. In 1983 the Sub-Commission appointed a Special Rapporteur on Genocide that widely studied the systematic massacre against indigenous Aché (Guayakí) of Paraguay, but its mandate was not prorogued. IVd. International instruments associated to the environment. The UNCED. Chapter II and III have analysed the content of UN Conference on Environment and Development (UNCED) documents in conjunction with the recognition of indigenous rights and the protection of indigenous peoples’ environment. The Convention on Biological Diversity is the only binding document related to indigenous peoples. Each signatory party to the CBD is committed to identify and monitor the components of biological diversity, to identify activities that may have adverse impacts on the conservation measures and to maintain and organise the relative data. The Parties also agreed to protect areas essential to the preservation of biological diversity by protecting the ecosystem and adopting recovery measures when necessary. The Convention directs the signatories to develop their own national legislation for the protection of endangered species. The supervisory role given to the Conference of the Parties is typical of many modern environmental treaties. The parties are required to keep implementation of the Convention under periodic review, to adopt amendments, annexes and protocols (among other duties). There is a provision for UN agencies and NGOs to have observer status but there is no explicit provision for openness and publicity of information. Moreover, the COP is dependent on the good faith of reporting States since CBD lacks any provision for independent monitoring or inspection.“Moreover, the Biological Diversity Convention also lacks a formal non-compliance procedure comparable to the one created by Article 8 of the Montreal Protocol to the Ozone Convention, even if in practice the Conference of Parties may well view its role in this way. Nor, finally, does the Conference have the power to adopt binding amendments to annexes by majority vote...”.(58)Among the non-legally binding documents adopted at the ‘Earth Summit’, Agenda 21 is certainly the most thorough and concrete. It is divided in 4 Sections (more a Preamble); the first about Social and Economic Dimensions ; the second about Conservation and Management of Resources for Development , the third about Strengthening the Role of Major Groups , the fourth about Means of Implementation . The third Section contains Chapter 26, about Indigenous Peoples (see Chapter III of this paper).Chapter 26 is very important. Firstly, it makes reference to existing document as ILO Convention 169 and the UN Draft Declaration. Secondly, it clearly states that recognition of Indigenous Peoples’ rights is at the base of environment protection and sustainable development. Thirdly, it stresses the relevance of indigenous peoples’ link with land and enunciates precise objectives and measures to be undertaken by governments and the international community.The fourth Section gives a very wide overlook of the Agenda means of implementation as financial resources, transfer of technology, education, promotion, international co-operation and legal instruments among others.Talking about non-legally binding documents related to environment it is important to mention that in 1994 the Final Report of the Special Rapporteur on Human Rights and the Environment has included a list of Draft Principles on Environment , whose art. 14 says:”Indigenous Peoples have the right to control their lands, territories and natural resources and to maintain their traditional way of life. This includes the right to security in the enjoyment of their means of subsistence”.(59)IVe. The ILO. The International Labour Organisation is certainly the UN specialised Agency, if not the international organisation in general, who has devoted more interest to indigenous peoples. In 1930 it adopted a Convention on Forced Labour, with several dispositions connected to indigenous workers, and in 1939 the Convention Nº 65 on penal sanctions to indigenous workers. In 1953 the ILO published a study entitled Indigenous Peoples , a survey of indigenous peoples’ living and working conditions. In 1957 Convention Nº 107 on Indigenous and Tribal Populations was adopted. The Convention was drafted in the name of the entire UN System and for 30 years was basically the only instrument specifically devoted to indigenous peoples. 27 countries have ratified it. During the ‘80s many NGOs, indigenous organisations and also the Martinez-Cobo report called for the revision of Convention 107, in particular for its assimilationist approach. This was done with 1989 Convention Nº 169 on Indigenous and Tribal Peoples in Independent Countries , ratified so far by thirteen States. The Convention consists of a Preamble and an operational part divided in 10 sections, equivalent to 44 articles. The Preamble has underscored the need for new standards, represented also by the use of the term ‘peoples’ instead of ‘populations’. The ILO has clarified that the use of the term ‘peoples’ is not linked to the question of self-determination, question over which the organisation takes no position and that is left to UN competence. The previous chapters have already dealt with the Convention for what concerns: the use of the term ‘indigenous’ and ‘tribal’ and the question of definition and self-definition (Chapter I), collective rights, self-determination and the provisions about land and environment (Chapter II). Other parts of the document refers to: the general provision on respect of different customs and traditions, recruitment and conditions of employment, vocational training, handicrafts and rural industries, social security and health, education and means of communication, contacts and co-operation cross-border.The supervisory system of the Convention is the general one of the ILO: the revision of States’ reports and the petition system. The ratifying States have to send periodically a report on the implementation of the Convention. Indigenous workers’ organisations can express their comments over these reports that are examined by the ILO Committee of Experts on the Application of Conventions and Recommendations. This Committee can address ‘direct request’ to the concerned States; these requests are not published and regard minor issues thatStates should undertake to solve problems. The petition system consists of two procedures. The first procedure allows, under art. 26 of the ILO Constitution, any State-party, any delegate to the International Labour Conference or the ILO governing body, to file a ‘complaint’ against a State who ratified the Convention for an alleged violation. This procedure leads to the establishment of a Commission of Inquiry. The second procedure, under art. 24 of ILO Constitution, consists of a ‘representation’ filed by any workers’ or employers’ organisation alleging violation of a ILO Convention by a State that have ratified it. This results in the appointment of a tripartite Governing Body Committee that examines and decides the case, usually on the basis of exchange of correspondence with the State concerned.“Even though indigenous peoples themselves cannot directly file complaints to the ILO, others could do so on their behalf. There is no requirement that a party initiating a complaint under article 24 or 26 of the ILO Constitution, or the party’s constituency, be directly affected by the alleged infraction. Labor unions are especially likely surrogates for indigenous peoples, given the demographic overlap and political alliances between indigenous and labor sectors. Additionally, the ILO Government Body itself is authorised to initiate article 26 complaints and could do so upon information provided by indigenous groups or by nongovernmental organisations concerned with indigenous peoples’ rights”.(60)IVf. The World Bank. The role of the World Bank in relation to indigenous peoples seems to be strategic, since it has participated in many of the development projects that most have affected indigenous peoples’ rights, environment and survival (to stress just two examples, the Narmada dam in India and the Bayano dam in Panama). Awareness about this situation has been growing in the World Bank Group since the ‘80s. In 1982 an Operational Manual Statement (OMS 2.34) was issued with the title Tribal People in Bank Financed Projects . This directive reflected much of the integrationist approach of ILO Convention 107. It enumerated a long list of characteristics defining tribal peoples and it made clear that it was concerned with projects that have a direct or indirect impact on tribal peoples. Its guiding principle was that development projects that affect tribal peoples should provide adequate time and conditions for acculturation(61) and that special programmes should be contained in the projects to mitigate the adverse effects of these latter.In 1986 the World Bank started a Five Years Implementation Review and in 1991 it issued a revised Operational Directive (OD 4.20) on Indigenous Peoples. The evolution from the first directive is already clear in the title. Indigenous peoples (or another equivalent terms such as indigenous ethnic minorities , tribal groups and scheduled tribes ) refers to social groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process.(62) But it also states that because of the varied and changing contexts in which Indigenous Peoples are found, no single definition can capture their diversity.(63) The directive states that the Bank’s objective is both to protect indigenous peoples against the potential harm or damage caused by development projects as well as to provide them (if they so wish) with new opportunities to participate in the benefits of the development process. The basis for that is the informed participation and recognition of the preferences of indigenous peoples.(64) Paragraphs 15.c and 15.d are devoted to Land Tenure and Strategy for Local Participation .In 1989 the World Bank has also issued an Operational Directive on Environmental Assessment (OD 4.00 then revised in 1991 as OD 4.01) to guide environmental impact assessment of World Bank’s financed projects. This directive makes reference to indigenous peoples’ practices as well as it does the 1993 New Forestry Policy (OP 4.36). Other important point to underscore is that in 1994 the World Bank established an Inspection Panel to investigate complaints filed by a group affected by a project of the International Bank for Reconstruction and Development (IBRD) or the International Development Association (IDA).(65) The party with a complaint can request an investigation to verify the compliance of these agencies with World Bank’s policies and operational directives. The Panel has to inform the Executive Directors of the request and send it to the Bank’s President. If the Executive Directors decide that an investigation should be undertaken, the Panel has full access to all staff and pertinent Bank’s records and delivers a report to the Executive Directors. They verify which initiatives have been taken by the management to respond to the complaint and subsequently inform the affected party. A complaint to the Inspection Panel has been filed in 1995 by the Mapuche-Pehuenche, to ask an investigation on World Bank’s involvement in the dam project on the Biobío river (see Chapter VI).The increasing interest of World Bank for indigenous peoples and environment issues has been also demonstrated by the new division on Social Policy and Resettlement that has been established in the Bank’s central Environmental Department and by its participation in the Global Environment Facility (GEF), the group of institutions that finances the implementation of the Bio-Diversity Convention. Because of the important role of the World Bank in stimulating change in other Multilateral Development Banks (as the Inter-American Bank of Development, the African Development Bank or the Asian Development Bank) and the complexity of its structure and policies, Chapter VI will look more in depth at the implications of World Bank’s actions for the protection of indigenous land and environment. IVg. Other UN Specialised Agencies. Other UN Specialised Agencies have dealt with indigenous peoples, although the majority addressed only marginally the issues of this paper. The UNESCO, among various activities, has elaborated several instruments for the protection and promotion of the right to education, the cultural heritage, the scientific progress and the right to cultural identity. The Convention against Discrimination in Education (1960) and the Declaration on Race and Racial Prejudice (1978), among others, contain provisions related to indigenous peoples. In 1978 UNESCO adopted a procedure for individual petitions about isolated or massive violations of human rights related to its competence (education, science, culture). The procedure is confidential and can regard also rights to intellectual property and cultural rights of minorities. A Committee of Conventions and Recommendations examines the admissibility and merit of the case and submits a report with recommendations to the UNESCO Executive Council who analyses it in private session.In 1981 the UNESCO organised an International Seminar on Ethnocide and Ethnic Development in Latin America. Ethnocide was there defined as the conditions under which an ethnic group is denied the right to enjoy, develop and transmit its own culture and its own language.(66)FAO has not elaborated any international juridical instrument but works in the field with activities for agriculture promotion and food programs for vulnerable groups. It participates actively in the implementation of Agenda 21 and CBD. The World Health Organisation (WHO) has participated in the drafting of ILO Conventions 107 and 169 and of the UN Draft Declaration on Indigenous Peoples, making proposals on the articles related to health. The UNDP has undertaken many projects regarding the development of indigenous peoples according to their culture and tradition. IVh. The Inter-American System. The interest of American States for indigenous peoples started even before the creation of the Organisation of American States (OAS), in 1948. In 1942 was indeed created the Inter-American Indian Institute. Although neither the Inter-American Declaration on the Rights and the Duties of Man (1948), nor the American Convention on Human Rights (1968) contain specific articles about indigenous peoples, the Inter-American Commission of Human Rights (IACHR) has addressed this issue in several occasions. In particular in the report it has made about human rights situation in different countries: Paraguay (1978, 1987), Nicaragua (1978,1981), Colombia (1981), Guatemala (1981, 1983, 1985 and 1993), Bolivia (1981) and Suriname (1985). In 1983 the Commission published a Special Report on the Miskito Indians in Nicaragua and in 1994 it produced a report about the ‘Communities of Peoples in Resistance in Guatemala’ regarding mainly the Maya Quiche people. In the case Aloeboetoe et al. v. Suriname (1995)(67), the IACHR addressed specific issues of indigenous communities and this attitude was reflected in the sentence of the Inter-American Court of Human Rights, who explicitly took into account indigenous customary law.The Commission has also discussed cases issued by indigenous organisations or NGOs, as with the Guahibo people of Colombia (1970), the Aché Guayaki people of Paraguay (1974) –when a Special Rapporteur was assigned to the case- and with the Yanonami people in Brazil (1980). The rate of extinction of these latter has been worrying between the ‘70s and the ‘80s and has improved a bit only after 1992 land demarcation. However the Commission continues to remain interested in the case. Another important case is the one of the Huaorani, an Amazonian people living in the rainforest of Ecuador. The oil exploration in the area has decimated several indigenous peoples in the areas since the ‘70s and exterminated entire groups such as the Tetetes. The same is happening to Huaorani: oil spills has damaged the entire environment and polluted the rivers making fishing, bathing and drinking impossible. The coming of white workers and colonists had spread alien diseases, prostitution and alcoholism among the Huaorani people, while violent confrontation with colonists have taken place.(68) A petition to the IACHR was filed in 1990 against Ecuador government, seeking also precautionary measures to avoid irreparable damages (under art. 29 of the American Convention). The petition alleged the violation of many articles of the American Convention and recalled art. 27 of ICCPR (of which Ecuador is part), the Lubicon Lake Band case under the UN Human Rights Committee and the Yanonami case under the IACHR. The violation of the right to a healthy environment, right contained in the Protocol of San Salvador to the American Convention (1988, art. 19), could not be alleged since the Protocol has not entered into force yet and in addition it does not allow bringing petitions before the IACHR on most of the articles contained in it.Although not having formally accepted the case, in 1994 the IACHR visited Ecuador under formal invitation of the government (after long-time pressure by the petitioners for that). IACHR made important statements on the country pollution resulting from oil developments linking it with a possible violation of the right to life as guaranteed in the American Convention.“The Huaorani’s Petition before the IACHR, despite suffering from the slowness and limited enforceability common to international actions, is the last resort for the protection of this group’s environmental human rights... The Huaorani action raises awareness both at the OAS level and among the general public about the suffering of Indigenous Peoples as a result of environmental destruction”.(69)The Huaorani case is of big relevance for the case of Mapuche-Pehuenche, analysed in Chapter VI.The Inter-American system is also concerned with the drafting of a Declaration on the Rights of Indigenous Peoples. This declaration, revised by the IACHR in 1997, makes important recognition of collective rights as indispensable to indigenous peoples and their members to enjoy individual human rights (art. II.2). The definition takes inspiration from the ILO Convention 169 on the question of self-definition (art. I.2) and the use of the term ‘peoples’ (art. I.3). A long article is devoted to the Right to Environmental Protection (art. XIII) and another one to Traditional Forms of Ownership and Cultural Survival. Rights to Land, Territories and Resources. Nevertheless, ownership of the resources pertaining to their land is not clearly attributed to indigenous peoples (art. XXIII.5) and not punctually listed exceptions to the principle of free and informed consent are allowed (art. XXIII.6). In the meanwhile the right to self-government within the State is clearly affirmed in art. XXV.
Chapter VThe Mapuche People(*) Mapuche means 'people of the land' ( Mapu = land, che = people).(70) The Mapuche are also known as 'Araucanos', the name given to them by the Spanish colonialists. They were the original inhabitants of the Southern Cone of the South-American Continent, a region that today covers half of Chile and half of Argentina. Now they are concentrated in the provinces of Arauco, Biobío, Malleco, Cautin, Valdivia, Osorno, Llanquilhue and Chiloe in Chile and Neuquen, Rio Negro, Buenos Aires and Santa Cruz in Argentina, but many have migrated to the main cities. Mapuche account for nearly 1,2 million in Chile (10% of the total population) and 200 thousand in Argentina, constituting the third largest indigenous people in South-America. Va. The social organisation. The Mapuche people can be both sedentary and nomadic communities, carrying on very different activities: hunting and gathering, herding, farming and fishing. Their traditional organisation has been based on the extended family structure, known as Lof, and under the authority of a chief called Lonko. The daily way of life of the community was regulated in the Ad-Mapu, a kind of code orally transmitted by the community wise-elders ( Ulmen). The Ulmen were chosen to ensure that the communal law was respected and acceptable standards of behaviour of its members were maintained. They also acted for the prevention and resolution of internal disputes. Nowadays the elders are still an important authority within the community. The highest authority of the community is the Lonko. A Council of Lonkos, comprised of representatives of all regions ( Butanmapu) used to meet in times of war choosing a Toqui, as military leader in charge of the army, while the communities organised themselves in Ayllarehue (8 lonkos).Their socio-cultural and political relations have always been shaped and complemented by their spirituality, their religious beliefs and the strong relationship between man, land and nature. The Mapuche have indeed a deeply religious society; their religious organisation is formed by the Machi as spiritual leader. Usually the Machi have a deep knowledge of traditional medicine, which they use in activities of purification of ill persons from the evil spirits by entering in trance during a rite called Machitun. Along this rite the whole community is involved in the invocation of the God Ngenechen to help the Machi to receiveenough strength to get in the body of the sick, recognise the evil and find the remedy. The purification comes by the use of medical plants, singings and the communication of the Machi with the ancestors - represented by the rewe, a kind of totem - which strengthen the link of the community with the land."En efecto, el suelo, la mapu significa para el mapuche la existencia de lo sobrenatural, significa la presencia del hombre inserto en el medio que le rodea. Constituye para ellos los espacios sagrados, el sitio propio donde se llevan a cabo los contratos y alianzas entre ngenechen y los mapuches. Podríamos asimilarlo a la definicíon de 'ergo-endosistema' en que las cualidades de la tierra le brindan beneficios al hombre y mujer y que por su parte, la tierra requiere de sus sacrificios. Esta 'propiedad', el suelo que representa el estado Mapuche, viene a ampliar sus dimensiones conceptuales a la tradición etnoliteraria que significa continuar la identidad como pueblo."(71)The most solemn expression of this religiosity is the Nguillatun; this ceremony takes place in the Nguillantue, an area specially allocated by the community. During the Nguillatun, Mapuche of all ages give thanks to Ngenechen for two or three days. The community with the guide of the Machi tries to strengthen the relations within itself and between the families in a collective act of renewing the past of the ancestors and of understanding the needs for the future. In these ceremony the language is fundamental since it represents the land and it spreads the planetary vision that unifies the community.That is why the language is called Mapudugun, the 'language of the land'. It is supposed to emerge from the listening to the land and all the elements of nature: sounds of wind, rain, trees, movements and sounds of animals, colour of the mountains. Although this language is an oral one, some Mapuche organisations in Chile are working for the creation of an alphabet in order to preserve and sustain the oral tradition and to avoid its disappearance.Vb. The struggle against colonisation. When the Spanish arrived to the Americas, the Mapuche people had different names according to the region, wallmapu, or a particular feature of the environment they were living in: Puelche (living in the land of the east), Pikunche (living in the land of the north), Lafquenche (living in the land of the Pacific coastal region in the west), Huilliche (living in the land of the south), Pehuenche (people of the pine nut tree, living beside the Biobío river)(72), Waidefche (people from the cordillera), Ranquilche (people from the apple tree region). The strategic border was the one in the north, with the Inca Empire, in correspondence with the Maule River, established after a long war. Before the colonialists (in Mapuche called huincas, literally 'usurper') arrived the Mapuche had already developed a regional cultural diversity without centralised power and with distinct ways of life, social organisations. Nevertheless they maintained a strong sense of unity, mainly during the struggle, not to be defeated by theinvaders.At the time of their arrival in the Mapuche territory, Spanish had their main headquarters in South America in the Viceroyalty of Cuzco, Peru. In 1541 Santiago (Chile's capital) was founded as a starting point for the conquest of the south. When they firstly invaded Mapuche land, they began to enslave the inhabitants, rape the women, and pillage the communities inflicting inhuman treatment to the ones who tried to resist or to escape from the work in the mines or 'encomiendas'. The aim of the Spanish was mainly economic (new lands to exploit) but also military: ensuring the expansion of their colony. The reaction of the Mapuche took, in the following months of 1541, to the destruction of Santiago and the liberation of the Mapuche territory under Toqui Michimalongo. In 1546 another battle was fought and won by the Mapuche. During the first century of the so-called 'Araucanian war', the Spanish, unable to accept the defeat from people they considered 'inferior and uncivilised', construed new garrisons in the south of the Biobío river. They were strongly trying to conquer Mapuche territory, but were always expelled by the Mapuche forces, able to employ different military strategies and tactics that constantly surprised the invaders.In the process both sides suffered many losses, that's why a century after the beginning of the war, in 1641, Spanish and Mapuche came to sign the Treaty of Quillin. With that, Spanish had to recognise the independence of the Mapuche nation, whose border was established along the Biobío River. In this way Spanish had to admit their incapability to defeat the Mapuche people, but these latter saw their territory passing from 31 million hectares (an hectare is 2,47 acres) to 10 millions. The Spanish had to dismantle their remaining fortresses and retreat to the north of the new border while Mapuche would have return Spanish prisoners and allow missionaries to continue with their work. Although both sides agreed not to violate the settled borders, from time to time Spanish organised military incursions in the south of the Biobío river to pillage communities and kidnap people to be sold as slaves in the mines of the north. This situation maintained a permanent state of war, since the Spanish couldn't conciliate their demand for slaves coming from the north and the agreement with the Mapuche.”La guerra de conquista y la presencia y presíon permanentes de los españoles sobre las sociedades indígenas libres del sur del Biobío exacerbó más aún el carácter guerrero de la sociedad mapuche. Esta, a pesar de su constante estado de guerra interno -consubstancial a ella-, que ya hemos señalado, llegó a identificar el español como el enemigo principal, de quien cabía esperar todo el mal, puesto que los indios sabían que los blancos, al contrario que las otras sociedades primitivas rivales, buscaban su completa destrucción social y cultural, incorporándolos definitivamente, mediamente el régimen de trabajo personal en la encomienda, en la mita, en el repartimiento, etc., al sistema de sociedad estatal -tan diferente a esa sociedad contra el Estado que era la mapuche- dentro de la cual ellos cumplirían siempre, forzosamente, el papel de dominados y explotados”.(73)The 'Araucanian war' became difficult to ignore because of the military and economic burden it represented for Spain. After the Treaty of Quillin, therefore, Spanish promoted a number of parliaments in order to pacify the Mapuche people. These parliaments, organised by the Spanish Crown in case of major losses in battle, were not desirable events to look forward to for the Spanish Governor in the colony: basically Spanish felt humiliated in having to talk to adversaries they considered not civilised. These parliaments were celebrated with grand solemnity although Mapuche were dubious of Spanish honesty. The last one took place in Negrete in 1803, just before Chilean independence.The losses of Mapuche since the arrival of the Spanish are unknown, and in addition they suffered for all the diseases the Spanish brought with them, against which the Mapuche had no defence. The effect of these diseases and of the consequent major epidemics throughout Mapuche land was the death of thousands of them, to be added to the number of persons that died in battle or kidnapped to work in the mines. Spanish lost around 50.000 soldiers and 60.000 'indios auxiliares', indigenous enlisted from other indigenous nations already conquered by the Spanish. 'Araucanian war' has been one of the major sources of losses for Spain in South-America.In 1810, the Spanish descendants, anti-royalists and Creoles from Chile and Argentina started a war for the independence from Spain that lasted almost 10 years. After the final defeat of the Spanish forces, and the declaration of independence of Argentina and Chile, these latter abrogated the Treaty of Quillin between the Spanish Crown and the Mapuche, and declared Mapuche land as theirs by decree. Under the same pretext of promoting civilisation used by the Spanish, they started a gradual take-over of Mapuche land that led to military aggression, persecution and extermination of entire communities.”Yet, on November 5, 1881, the Mapuches arose one last time in a general insurrection. According to José Bengoa, a prominent Chilean anthropologist, it was the first time in their entire history that all the groups of the very decentralized Mapuche had joined in a single insurrection. They did not engage in this act to secure their political and military independence -that was now lost beyond recovery. As Bengoa notes, 'the Mapuche knew perfectly well that they were going to lose and that the majority of them would die in this general insurrection.' So why did they make the effort? Again, to quote Bengoa, the last insurrection was 'a cultural imperative that obligated (the Mapuches) to appear with their lances, in front of the huinca (the Mapuche word for non-Indians) forts and cities and say: We are still an independent people and we will cease to be such only in a ritual act of combat and death.'”.(74)In 1883, in Patagonia, the Mapuche people was finally defeated by both armies, and many people were either killed or forced from their homes to live impoverished lives in small rural communities and in the cities. During this campaign, recorded in Chilean history as the 'Pacification of Araucania' and in Argentina as the 'Campaign of the Desert', many children were taken from their families and given to white people to be trained as servants.Many Mapuche call this war as the 'penultimate struggle', to underscore their commitment to the recuperation of their independence.During this war with the new independent States of Chile and Argentina, an original attempt was made by Mapuche people to assert their independence: the creation of the Kingdom of Araucania and Patagonia. After long deliberating and consulting throughout the Mapuche territory, in 1860 the Kingdom was formed with a constitution contemplating the creation of a Council of Ministers, a legislative body nominated by universal suffrage and a Council of the State responsible for the bills. As King was appointed Orelie Antoine de Tounens, a French lawyer arrived in Chile in 1858 attracted by the heroic resistance of Mapuche. He had travelled to the Mapuche territory, and had been then integrated in the costumes and language ( Mapudugun) of Mapuche society. The Chilean and Argentinean governments, plotting for the complete occupation of Mapuche territory, organised a diplomatic campaign to discredit the formation of the Kingdom, while the Chilean security forces offered a money reward for the capture of the King. In 1862 King Orelie Antoine was taken prisoner and put in jail in Los Angeles. Declared as insane, he was first sent to the lunatic asylum in Santiago and then expelled from Chile and forbidden to re-enter. His legitimate successor is Prince Philippe I who lives in Paris and holds the title of His Royal Highness to the Crown of Araucania and Patagonia in exile.The formation of the Kingdom in 1860 has been a clear statement of independence of the territory from the Biobío river to the south, under Mapuche jurisdiction. Vc. The last century. After their eventual 'pacification' in 1883, the Mapuche were settled in 'reducciones', small reserves in most cases separated one from another by areas occupied by Chileans and European immigrants. The process continued until 1929, when 3.078 reserves were created for a total of only 525.000 hectares, issuing 'títulos de merced' for the lands considered communal and as a concession of the State to the Mapuche. Usually the land assigned was the worst one, not fertile and in very harsh environment; it represented the 6,18% of the ancestral one. Laws of inalienability were passed in 1927, but a lapse in its renewal in the '40s caused the purchasing of some other 100.000 hectares of Mapuche land. Between 1954 and 1972, a Mapuche, Venancio Conioepan of the Conservative Party, was the Minister of Lands. His opposition to the division of Mapuche lands took to a slow down in the process of alienation of those lands.In 1972, the Popular Unity government of Salvador Allende tried to restructure the situation of Mapuche land. It issued Law 17.729, the first legislation favourable to Mapuche in the history of Chile."Quite the opposite of the earlier legislation, this provided not for the division of lands but for consolidation and increase in size of Mapuche land and holdings and the confirmation of communal ownership. Indians are defined both as the owners or occupiers of lands and referred to in the relevant legislation (since 1860) and also as those who speak an indigenous language and maintain distinctive cultural practices. The Indians are presumed to be the owners of their lands and various procedures are spelled out for the recovery of formerly usurped Indian lands. That was to mean not only lands which had been part of the original 525.000 hectares titled since the 1880's, but also for progressive increase of Indian territory as the agrarian reform would continue to expropriate lands in excess of the established limit."(75)The law provided also for the allowance of credit, the cancellation of debts and of all the decrees of expropriation of Mapuche lands. Any further division of their lands was to be requested by an absolute majority of the community members. No taxes were to be imposed on Mapuche lands, which were inalienable as the woods over them. A Directorate of Indian Affairs was set up as new government agency to promote the social and educational development of the communities. During the one year the law was in effect, the Mapuche regained a good deal of land that had been in the hands of large landowners.Immediately after the coup of 1973, all the gains of Law 17.729 were reversed by the new regime and the lands were expropriated again. In 1979, Decree Law 2.568 returned things as they were and make them even worst, as can be perceived by the repressive nature of its title: "For the Indian, Indian lands, the Division of the Reserves and the Liquidation of the Indian Communities". Indigenous people were no longer defined in terms of different language or culture; provisions were made for the division of Mapuche lands at the request of one single person. This latter needed not to be a Mapuche, but could just be an occupant, an usurper of the land. Divisions could not be annulled or rescinded and there could not be appeal against a judgement of land division. In this way, following a division, the lands were no more considered as indigenous."La política de desarraigo y asimilación conocerá un punto extremo tras el Golpe militar de septiembre de 1973. El régimen militar adoptará el principio por el cual todos los habitantes de Chile son sólamente chilenos, negando la identidad de los pueblos indígenas y reprimiendo violentemente las organizaciones mapuche así como sus dirigentes (asesinatos y desapariciones). El General PINOCHET promulga los Decretos-leyes Nº 2.568 y 27.550 de 1978 y 1979, respectivamente, con el fin de poner punto final al llamado «problema indígena y al asunto indígena». Una legislación que tenía por objectivo implícito la eliminación de comunidades mapuche dividiendo las tierras ocupadas por estas comunidades en dominios privados (5,36 hectarás. por familia) permitiendo su arriendo a personas no indígenas por 99 años y su venta tras 20 años. De esta forma el pueblo mapuche, de la propiedad comunitaria de sus tierras llega a la propiedad privada, y los 3.078 Títulos de Merced (de favor) entregados a los mapuche desde 1884 a 1919, pasan a traducirse con los decretos-leyes de la dictadura militar en más de 86.000 títulos de dominio individual, regidos por el principio según el cual todos los habitantes de Chile son chilenos, negando así la identidad de los pueblos indígenas".(76)According to the UN Ad Hoc Working Group on the Situation of Human Rights in Chile (1978), the counter-revolution of 1973 hit the Mapuche people even harder than most other sectors. The new legislation increased the pauperisation of the Mapuche: in 1988 their rate of mortality was twice higher than in the rest of the country.The victory of the opposition to the military regime in 1988 referendum carried to a transition process initially led by President Aylwin. In the meanwhile a big debate was taking place in regard of the recognition of the various indigenous peoples living in Chilean territory (not only the Mapuche, but also Rapanui in the Eastern Isle, Aymaras in the north of Chile and Kawáskar and Yamana in the extreme south). In 1989, with the 'Acuerdo de Nueva Imperial', principles for mutual recognition and new forms of relationship aimed at development were fixed. Those principles are translated in the Law n. 19.253, known as 'Ley Indígena', published in October 1993. In 1994 different decrees fixed criteria for the recognition as indigenous, for the constitution of indigenous communities and for the organisation and management of a Public Record of Indigenous Lands and Waters.As implementation of the 'Ley Indígena', three important measures were taken:Vd. The threats to Mapuche people. Apart from these progresses, the effort made by the government is not enough. The ratification of the ILO Convention n. 169 is pending in the parliament since 1991 and the funding for indigenous peoples is weak. According to one of the last UNDP reports (1998), in the regions where Mapuche are the large majority, the levels of human development established by this agency are not reached.The systematic confiscation of Mapuche lands and resources by the State or private companies has constrained the former in a state of extreme poverty, without medical care or adequate nutrition, which made their life-average 10 years shorter than the rest of the population(77). The poverty pushes a part of the people to search for a job in the towns (according to a 1992 census, 44,1% of the total Mapuche people lives in Santiago, the capital of Chile). The educational system promote cultural uniformity, therefore Mapuche language ( Mapudugun) risks to disappear, while the lack of resources provokes a 20% of illiteracy in Mapuche areas against the 5% in the rest of the State(78).Various conflicts or disputes about land are taking place with scarce chances of defence for the Mapuche communities. The next chapter will focus on the case of the Mapuche Pehuenche, whose land and environment can be irreversibly damaged by the building of 6 hydroelectric dams in the Biobío river (of which one, Pangue, already built and another, Ralco, under construction). These dams will push some 4.000 people to lose their homes and lands, most of which with very important religious and archaeological value, including sacred cemeteries and historical settlement.But this is not the only case where Mapuche lands are confiscated or occupied irrespective of the 'Ley Indígena' of 1993, which requires the consent of the whole community for any action or project affecting the Mapuche land. In the ninth region there are plans to build a bypass road that will affect 28 Mapuche rural communities (Ninlilko, Truf truf, Konun wenu among others) and 3.000 people living there. The road will lead to the destruction of a big part of the forest and will cut through religious sites. Near the town of Temuco, various wood firms are cutting down a big part of the forest in Mapuche territory, profiting of the divisions of land decided during the Pinochet regime and so destroying an important part of the environment and a source of sustainment for the local communities.Also in Argentina, the Mapuche are suffering various attacks on their land. In Pulmari (Alumine region) the Mapuche Puelches are facing the threat of confiscation of 110.000 hectares of their land because the regional government ignores the central administration decree of 1987 that awards land rights to the local Mapuche. In the region of Loma de la Lata, province of Neuquen, the Painemil community (14 Mapuche families) is surrounded by huge infrastructures for the exploitation of the area, rich in oil and gas. They have complained against the institution 'Yacimientos Petrolificos Fiscales' (YPF) for pollution and environmental damage. No action was taken notwithstanding the critical consequences on their health: exams on blood and urine samples revealed the presence of high levels of mercury and lead that have provoked, as main symptoms, brain-damage, sterility, arthritis, cancers and damage to the immunity system.According to many denounces and urgent actions asked by local and international NGOs,(79) linked to the question of land disputes is also the racist and intimidatory attitude of the police, who many times has interrupted peaceful manifestations of protest, religious celebrations or cultural gatherings with the use of unnecessary force. Many cases of detention without guarantees, restriction of freedom of movement and harassment, threats or unmotivated imprisonment of leaders have been registrated by various NGOs(80) or associations. Particularly grave is the situation in Chile, where the government still makes use of the Law of State Internal Security inherited from the former regime and carrying to the effective militarisation of Mapuche territory.To conclude this worrying overlook of the situation of the Mapuche it could be add the case of the Mapuche Huilliches, living in Detif Island. The University of the North Medical School, in the province of Chiloe, has taken blood, hair, and saliva from Mapuche children since 1994. This operation has been carried out through the local hospital health service for unknown purposes and without neither knowledge nor permission from the parents of the children.
- the constitution of CONADI, the National Corporation for Indigenous Development, a decentralised public agency with its own legal personality and budget, dependent of the Ministry of Planification and Co-operation;
- the creation of CONADI Counsel, formed by 17 members, 8 elected by indigenous communities and 8 as ministerial representatives; the president of the Counsel is appointed by the President of the Republic. The 8 indigenous representatives have been elected by the vote of 90.000 people and the participation of 2.600 communities. The democratic result of this consultation was obscured by the scarce attention to the different traditions of indigenous peoples where election practices are not diffused and therefore the peoples voted were often not reflecting the structure of the community but were elected because they could speak a good Spanish. Moreover, this voting operation did not take into account the traditional figure of the Lonko, who is a kind of 'primus inter pares' whose authority can be always questioned by the community if he does not represent the overall consensus within it.
- The constitution of a fund to finance projects for indigenous local development and the realisation of the Fund for Indigenous Lands and Waters, which permitted the assignment of 13.000 hectares of land object of conflict to indigenous communities and others 33.000 hectares from the Ministry of National Properties.
Chapter VI.The case of the dams on the Biobío river. This Chapter presents the case-study object of this paper. A first paragraph will expose the case of the building of a series of dams on the Biobío river, in Chile. The exposition will deal with both the projects already undertaken, Pangue (completed in 1996) and Ralco (under construction). The first paragraph will also describe the role played by the various actors involved in the case. A second paragraph will try to analyse the environmental, economic, political and cultural issues associated with the case in a wider way, considering the various strategies and relations of power of the actors involved. A third paragraph will look at the possible legal resort that the indigenous people involved (the Mapuche-Pehuenche) have at the international level, while in the following paragraph will be examined the difficulties and the obstacles evidenced by this research of a legal resort. The last paragraph will assess the possible outcomes and improvements suggested by the case discussed. VIa. Exposition of the case and actors involved. From Pangue to Ralco. The case examined here below regards the building of two dams (of a series of six) in the area of the Upper Biobío, in Chile. The project has affected (in the case of the first dam, Pangue, already built) or threatens to affect (in the case of Ralco, under construction) the environment of the region, the land and the cultural survival of the indigenous people Mapuche-Pehuenche living in the area. This paragraph will also try to describe the role played by the various actors involved. VIa1. The Biobío, environment and bio-diversity. The Biobío is a very important river in Chile. It measures 400 km. And covers 25 millions of hectares. Its origins are in the Lagoon of Icalma y Galletué (IX Region) and its end is near the town of Concepción, in the Arauco Gulf. The first part of its course, the Upper Biobío, is in the strict and high canyons of the Andean Cordillera, while the in the second part, the Lower Biobío, the river flows wider and quiet. This second part is heavily affected by chemical, wood and fishing industries and by the lack of cleaning-plant of residual waters coming from the surrounding towns and villages. This has also strongly prejudiced the ecosystem of the Arauco Gulf. However the Biobío provides drinking water for over a million of people and important nutritive elements for the Gulf, still one of the most important fishing areas of Chile. The Upper Biobío is an area of enormous relevance for the diversity of flora and fauna since in it finds place a mix of species pertaining to the dry areas of the north and the humid of the south. According to the National Commission for Fauna, of the 243 species of vertebrates in danger of extinction living in Chile, 77 are in the Upper Biobío. In the area are also present five volcano, of which, three actives. VIa2. The Pehuenche. The Biobío river runs through the heart of the land of the Pehuenche. In Mapudungun (Mapuche language), Pehuenche means people ( che) of the pine nut ( pehuen). The pehuen is the fruit of Araucaria Araucana , a millenar pine tree who lives in the area of the Upper Biobío. The Pehuenche are nearly 10.000, divided in 4 communities, and occupies an area of nearly 30.000 hectares around the Callaqui volcano. They were initially distinguished from the other Mapuche people, for culture, language and physical aspect, but since the XVIII century they have progressively become part of Mapuche culture and traditions. Since the last century they share the same language ( Mapudungun) and legally constitute the same ethnic group calling themselves Mapuche-Pehuenche or simply Pehuenche.Pehuenche economy rests upon unrestricted access to renewable natural resources: pine nuts, wood for building or fuel, pastures and gathering of forest products. Woodcutting provides an important source of income, but non-indigenous often take advantage of Pehuenche isolation paying the timber half of the regional price. In the summer Pehuenche families and their animals migrate to the high Andean veranadas (areas at 900 to 1.000 metres over the sea level) for their husbandry and the collection of the pehuen. During the rest of the year, being these areas covered with snow, they live in the invernadas (areas at 600 metres over the sea level), near the Biobío river. The pehuen is essential both in their material and in their cultural and religious life. This nut is their primary source of nourishment. Pehuenche obtain flour, milk and alcohol from it, they consume it with bread and other food. They use it also to feed their animals (sheep, goats, cattle, horses), and during the summer they collect a quantity sufficient for the whole year. With the pehuen they prepare the Mudai, a fermented drink that they use for religious ceremonies. The Araucaria and its fruits are important sacred elements in Pehuenche’s culture.“A diferencia de los ngüillatunes mapuche, las comunidades Pehuenche en el centro de su cancha, el rewe, colocan una plántula de Araucaria a la cuál le brindan agradecimiento. Esta actividad religiosa tiene los mismos fine en ambas culturas: fertilidad de la tierra, buena cosecha de piñones, buen tiempo, buena reproducción de animales y mucha lluvia, como también las peticiones por determinadas necesidades de la comunidad... Para los Pehuenche la Araucaria tiene su dualidad, es hombre y mujer a la vez, es la vida porque de ella se toman los frutos y es la muerte porque sin ella simplemente la existencia se limita”.(81)VIa3. The Pangue dam. Since the time of Pinochet’s dictatorship, Chile economic policy stressed the model of privatisation of State’s enterprises and a production strongly related to the exploitation and extraction of natural resources aimed at the exportation. Already in 1978 ENDESA, the National Electric Enterprise created by the State in 1943, took the decision to undertake hydroelectric projects on the Biobío river. In 1989 the new-elected Chilean government, the first of the transition of the regime to democracy, approved the plans of ENDESA, which was privatised in 1988, for hydrodevelopment on the river. The year after the authorisation was given for the building of the dam Pangue by invoking the Electrical Services Law, decreed by Pinochet’s regime in 1982. The building of Pangue had as consequence the flood of 500 hectares occupied by Pehuenche communities, affecting in particular 75 persons. This implied the relocation of various families with the loss of contacts with the rest of the community, the loss of important areas of husbandry and collection of pehuen and the flood of ancestral cemeteries and sacred sites. Also the environmental consequences are relevant considering the risk of extinction of 6 endemic species of fish.“Las consequencias ambientales y sociales provocadas por el embalse son serias, las que comienzan con una desregulación del flujo natural del Biobío, alterando la calidad de sus aguas tanto al interior de la presa como aguas a bajo de esta. Además su funcionamiento ‘exige’ cortes diarios del río, es decir, secarlo en tramos que van de 5 a 15 km. Por 3 horas, sumando 917 horas/año cuyo objectivo es nada más que llenar el embalse, para luego someterlo a golpes de agua en lo que se denomina ‘energía de puntar’. Pangue retendrá el 87cc de los sólidos en suspensión que acarrea el río, material importante porque constituye uno de los principales aportes nutricios al Golfo de Arauco que es una de las zonas pesqueras más importante del país”.(82)While non-governmental organisations and environmental activists start a campaign against the dam, Pangue S.A., a ENDESA subsidiary created to look after the hydro-development plans on the Biobío, paved a road (in conjunction with the government) that ran eastwards from the Pan-American Highway into the Upper Biobío escarpment. The previously isolated Biobío region became characterised by unchecked in-migration, speculation and de-forestation. The area attracted a number of independent timber contractors who gave Pehuenche landowners small sum of money, harvested their trees and left, making the landowners unwittingly responsible for the violation of Chilean forestry laws, which require permits and reforestation.(83) Furthermore the Lonquimay volcano, 10 km far from Pangue, had an eruption in 1991. VIa4. The World Bank’s involvement. To finance the cost of the project, ENDESA asked, through Pangue S.A., funds to IFC, a member of the World Bank Group.(84) After the approval of the Pangue Dam Project in 1993, the IFC and ENDESA signed an investment agreement of US$ 170 million loan to build Pangue dam, while US$ 28 million were provided by the Swedish Board for Industrial and Technical Cooperation, US$ 14 million by the Norwegian Agency for Development Co-operation (NORAD) and US$ 100 million from 10 European Banks. IFC also held 2,5% equity interests in Pangue S.A..(85)An institution called ‘Pehuen Foundation’, was created as part of the agreement signed by IFC and ENDESA to mitigate the impacts of the building of Pangue Dam over the Pehuenche communities. The residents of the interested communities (Callaqui, Pitril and Quepuca-Ralco) earned money from direct Foundation programmes and projects related wages. Essentially the tasks of the Foundation were:In the same period, plans started to be disclosed on the intention of ENDESA to build a second and bigger dam, Ralco. Various NGOs and Pehuenche people argued that the building of a large reservoir-dam upstream of Pangue was clearly necessary for the working of the latter (including the building of a powerhouse between the two dams to regulate water flow and generate energy) and that therefore the government should evaluate the environmental and social effects of both the buildings before giving its approval to Pangue dam. IFC staff and the board reiterated many times that Pangue was a single, stand-alone dam and that IFC was funding only this first dam. In May 1995 IFC hired the anthropologist Theodore Downing as an outside consultant to conduct an interim evaluation of the Pehuen Foundation. This evaluation was to focus on the degree to which the Pehuen Foundation had meet its original operating goals. Downing designed a participatory fieldwork strategy and negotiated a contract with IFC that included reporting the findings of his research to the Pehuenche in a culturally appropriate fashion.(86) At the end of 1995, while ENDESA continued building roads and related infrastructure in the area devoted to Ralco dam project, an NGO called ‘Grupo de Acción por el Biobío’ (GABB), issued a complaint to the World Bank’s Inspection Panel, alleging IFC violation of Bank’s directives on environmental and social policies on dam and reservoir projects, including Operational Directives 4.20 on Indigenous Peoples and 4.01 on Environmental Assessment. Furthermore the complaint affirmed that funds allocated to Pangue S.A. were used for the Ralco project in clear violation of the IFC/ENDESA loan agreement. The Inspection Panel rejected the complaint on the ground that IFC was outside the Panel’s jurisdiction.(87) However, as a result of the complaint, World Bank’s President J.D. Wolfensohn appointed in May 1996 the ecologist Jay Hair to evaluate IFC (and ENDESA) compliance with the environmental requirements of the IFC/ENDESA agreement.In the same period T. Downing submitted a highly critical report to IFC. According to it the Pehuen Foundation, despite of some positive achievements, failed to comply with its main tasks. Furthermore the report showed, contrary to what was said by IFC, that 77% of the people affected by the nearly completed Pangue dam, were Pehuenche. The report alleged also that IFC staff misled the IFC board and public investors about IFC knowledge of ENDESA plans to build Ralco.(88) In relation to resettlement procedures (part not requested to evaluate by IFC), Downing claimed that Pangue S.A. and Pehuen Foundation failed to provide information to Pehuenche in a culturally appropriate way, offering resettlement packages to individuals and families without opportunities for decision at community level and withholding critical information from the Pehuenche. Pehuenche were not involved in the set up of the Foundation; three Pehuenche served in the Foundation but they could be removed if the board decided that they were an impediment. The Foundation did not understood the Pehuenche social structure attributing to the lonkos an authority to take decisions binding on their groups that is not recognised by the Pehuenche, whose political organisation is based on kinship. Basically the report affirmed that the Pehuen Foundation was not able to assure Pehuenche’s informed and effective participation to the decisions regarding their communities, since, in Downing’s opinion, only a general assembly of the entire group would have provided the culturally appropriate forum for such decisions. The report, submitted in May 1996, was diffused by the IFC only at the end of 1997, threatening the author with the loss of his consultancy job and possible legal action.(89) The report of ecologist Jay Hair, submitted in April 1997, echoed many of the critics expressed by Downing’s report, including that from 1988 to 1994, timber worth between US$ 3 million and US$ 18 million had been stripped from Pehuenche community lads as a direct and indirect effect of building Pangue dam. Hair considered that IFC failed to comply with 80% of its environmental and social policies.(90) The Hair report was released in July 1997 in a heavily censored version (1/3 of the document had been deleted). Hair wrote a letter of protest for that.(91) VIa5. The Ralco dam. Ralco dam is supposed to be the biggest one of the 6 dams projected on the Biobío. It would be situated 27 km before Pangue dam along the river. With its 155 metres height will drown 3.400 hectares of land to generate 570 Megawatts of electricity/power. The dam will conduct the waters in a 7 km tunnel to reach the central turbine at big speed. The land pertains in majority to Pehuenche people that would be displaced in a measure of 500 to 1.000 persons divided in 91 families of the communities of Quepuca-Ralco and Ralco-Lepoy. According to some investigation, the dam and its reservoir would also threaten 27 species of mammals, 10 species of amphibians, 9 species of reptiles and 8 species of fish, it would increase the access of logging and the deterioration of aquatic life and drinking water and the erosion of land.(92)During the time from the submission of Downing's report (May 1996) and its release (December 1997), many developments occurred in the Biobío case:
- be a vehicle for sustainable development to provide long-term benefits to Pehuenche by promoting their socio-economic development;
- prepare to mitigate effects of construction activities;
- preserve and reinforce Pehuenche cultural identity;
- make its best efforts to arrange for the supply of electric power to the communities.
VIa6. The Ley Indígena and CONADI.(98) Art. 1.3 of 1993 Indigenous Law 19253 says:
- In May 1996 ENDESA and IFC reached a new agreement to use the Pehuen Foundation to mitigate the social impacts of Ralco dam construction, especially resettlement.(93)
- The same month CONADI (the National Commission for Indigenous Development), stated that Ralco was illegal according to 1993 Indigenous Law 19253.
- In June CONAMA (Chilean environmental agency born from 1994 Environmental Law 19300) declared the Ralco Environmental Impact Statement prepared by ENDESA unsatisfactory for the second year. The agency took the decision on the basis of various elements, among which the fact that in 1992 Copahue volcano, distant 13 Km from Pangue and 6 Km from the site of Ralco dam, restarted its activity. Other element was a study entitled 'Efficient Use of Electricity in Chile (1994-2005)' according to which Ralco would provide energy far in excess of what Chile need in the foreseeable future, and only at unacceptable high social and environmental cost.(94)
- In September 1996 Pangue was completed and in November started to produce energy.
- In 1997, February, the IFC threatened to declare ENDESA in default for failing to meet the environmental conditions of the Pangue Agreement.(95) The following month ENDESA refinanced its loan through the Dresdner Bank of Germany, thus effectively removing the IFC from any interference, apart from the 2,5% of equity interest in Pangue S.A..
- In the same period at the inauguration of Pangue, Chilean President Eduardo Frei publicly supported Ralco building(96) and in the month of May he dismissed the CONADI Director Mauricio Huenchulaf, of indigenous origin.
- In June CONAMA approved the Ralco project Environment Impact Assessment adding some conditions to be accomplished by Pangue S.A.; ENDESA contested the new conditions posed by CONAMA, which included a different resettlement site and reduced power-generation of the hydroelectric central. The decision of CONAMA has been strongly criticised by many parts, a week later, the Institute of Indigenous Studies of the Universidad de la Frontera, in Temuco, produced a strongly critical assessment of CONAMA decision. The Institute, whose consultancy was requested by CONAMA for 1996 evaluation of Ralco Environmental Impact Assessment, underlined the damages that the Ralco project will bring (if accomplished) to Pehuenche's traditions, culture, and archaeological sites. This includes also the end for their characteristic system of veranadas and invernadas since the resettlement would be in a locality, El Barco , situated at 1.000 metres over the sea level (thus covered by snow for the major part of the year), mining the internal cohesion of the communities. The Institute stressed also the lack of participation of the citizenship to the process of evaluation and the strong pressure exerted by ENDESA over the Pehuenche families (as for instance saying that if they don't accept the relocation they will be resettled without compensation).(97)
- In the same period a legal action was undertaken against ENDESA and CONAMA (Nicolas Quintreman y Otras contra CONAMA y ENDESA S.A.) by Pehuenche families and two request of interim measures ( Recurso de Protección ) were presented by the Coordinadora de Organizaciones Mapuche and the Communities of Quepuca Ralco and Ralco Lepoy against CONAMA decision. All the three actions have been pointing on the lack of respect of the provisions of the 1993 Ley Indígena .
”Es deber de la sociedad en general y del Estado en particular, a través de sus instituciones respetar, proteger y promover el desarrollo de los indígenas, sus culturas, familias y comunidades, adoptando las medidas adecuadas para tales fines y proteger las tierras indígenas, velar por su adecuada explotación, por su equilibrio ecológico y propender a su ampliación”.Art. 12 identifies indigenous lands and exempts them from the paying of taxes.Article 13 is the one taken as the basis to declare illegal the building of Ralco dam:”Las tierras a que se refiere el artículo precedente, por exigirlo el interés nacional, gozaran de la proteción de esta ley y no podrán ser enajenadas, embargadas, gravadas, ni adquiridas por prescripción, salvo entre comunidades o personas indígenas de una misma etnía.Basically this article forbids the sale, rent or alienation of indigenous land if not among indigenous communities or indigenous persons. It admits the sale of land but only with CONADI approval. Nevertheless this sale cannot encompass the home of the indigenous family and the land necessary for family's survival. The article closes saying that every act or contract in contravention with it would receive absolute nullity.Law 19253 also took to the creation of CONADI(99), National Corporation of Indigenous Development, with the task of defending Chilean indigenous interest and land. The agency is formed by 17 members, 8 councillors and 1 director expression of the government that are removable by the President of the Republic and 8 indigenous councillors expression of the Chileans ethnic groups (Aymara, Rapanui, Mapuche...). VIa7. The last developments. On the basis of the Ley Indígena , in September 1997 CONADI, leaded by new Director, the indigenous Domingo Namuncura, questioned the legitimacy of individual resettlement agreements between Pehuenche families and ENDESA.At the end of the year ENDESA ESPAÑA (EE), the Spanish Electric Company, get involved in the case through buying the 32% of Enersis, the holding that controls part of ENDESA Chile.(100) Following changes in ENDESA Chile structure, Pehuenche people sent information on the Ralco case to EE President Rodolfo Martín Villa.In March 1998 two independent reports have been published on the case. The first one is related to the investigation mission in Chile undertaken by the International Federation of Human Rights on July 1997.(101) The report alleged that the main mission's findings have been:
No obstante, se permitirá gravarlas previa autorización de la Corporación (namely CONADI) . Este gravamen no podrá comprender la casa-habitación de la familia indígena y el terreno necesario para su subsistencia.
Igualmente las tierras cuyos titulares sean comunidades indígenas no podrán ser arrendadas, dadas en comodado, ni cedidas a tercero uso, goce o administración.
Las de personas naturales indígenas podrán serlo por un plazo no superior a cinco años. En todo caso, estás con la autorización de la Corporación se pordrán permutar por tierras de no indígenas, de similar valor commercial debidamente acredita. Los actos y contratos celebrados en contravención a este articulo adolecerán de nulidad absoluta”.According to the mission the government should guarantee the accomplishment of law 19.253 and the undertaking of a true process of collective consultation, without taking advantage of the precarious economic situation of the communities.The second report(103) was prepared by the Committee for Human Rights (CfHR) of the American Anthropological Association (AAA) in response to a complaint of Dr. Theodore Downing, member of the association, and author of the evaluation commissioned by IFC in 1995(104) and not released by this latter until the end of 1997. Downing claimed that IFC failure to release its 1996 report to the Pehuenche in a culturally appropriate forum, as established in the contract negotiated by him and IFC(105), violated the rights of Pehuenche to be adequately informed before being asked to sign resettlement agreements and its rights as an anthropological researcher and independent consultant. The AAA-CfHR produced a wide report alleging many questionable acts related to the building of Pangue and Ralco dams:
- The realisation of the Ralco project would amount to an irreparable damage to the environment and to the disappearing of the traditional way of life of Pehuenche.
- The building of Ralco would be done in disregard of what says the Ley Indígena , in particular article 13, and therefore this case is an emblematic one for the future relations of Chilean State and indigenous peoples living in its territory.
- The areas proposed for the resettlement of the communities are three. One, El Barco , is situated more or less at 1.000 metres of altitude and is covered by snow during the major part of the year. That would impede the traditional life of Pehuenche, based on invernadas and veranadas. The second alternative, El Huachi , does not offer chance of collecting wood or pehuen, pine nuts. The third alternative, Santa Laura , is 85 km far from the Upper Biobío area, implying the breaking of the relations with the other communities.
”...la pregunta de los representantes de estas comunidades no resulta nada fácil de responder: «Hay tierras donde nosotros pudiéramos reinstalarnos, que ofrecieran condiciones semejantes a aquellas que conocemos y tenemos acutalmente? Si ellas existieran, no creen ustedes que viviendo en estos lugares desde hace siglos, haría ya mucho tiempo que nosotros las habríamos descubierto?»... reflexión que procede de una lógica evidente”.(102)- Any kind of resettlement, though satisfying it could be, would in any case represent a breach on the spiritual relation that Pehuenche have with the river, with their land, their cemeteries and their ancestors. Furthermore they would be compelled to adapt to a complete different system of agriculture, husbandry and economic survival, therefore abandoning their traditional systems and costumes.
- The consultation carried out by ENDESA has not followed the way indicated by international instruments (as ILO Convention 169 or UN draft Declaration). ENDESA has not consulted the whole community but every single family offering new comfortable houses with electric connection in the sites for resettlement, jobs and animals for husbandry, but not following a process of effective and informed consultation.
- The Pehuenche group affected by the project is divided between the families that gave their agreement to resettlement (among which there are some that changed their mind) and the families strongly opposed to the project.
The report calls upon IFC, World Bank Group, ENDESA and the Chilean government to ensure the effective participation of Pehuenche in all plans affecting them and ensure that Pehuenche consent is reached through a culturally appropriated decision-making process. The process should reflect the group rather than individual consent. The report also affirms that IFC should sign to the World Bank's Operational Directives regarding resettlement, indigenous peoples, environmental assessment and disclosure of information. IFC should also produce a detailed report on the failures of Pangue-Ralco project and adequately compensate the Pehuenche for the damages inflicted to them.
- By refusing to distribute Downing's report to the Pehuenche representatives in the Pehuen Foundation board (while distributing copies to the non-indigenous representatives), IFC and ENDESA violated the explicit guarantees of the 'Terms of Reference' of Downing's consulting agreement on the right to Pehuenche to know and participate in their resettlement plans. Furthermore this would constitute an act of ethnic discrimination.
- On April 1997 IFC and ENDESA signed a private agreement to address outstanding environmental and social impacts resulting from IFC's investment in Pangue project. This happened without the awareness or the involvement of the Pehuenche and without disclosing the complete terms of the agreement to the affected people, the Chilean government or the public.
- IFC granted the permission to release Downing's research findings (only at the condition of not qualifying the report as IFC official document) well after the public review period for the Ralco project had expired. While IFC justified this as necessary to avoid threatened legal action against it by ENDESA, it nevertheless contributed to a violation of Pehuenche rights through concealing critical information about the adverse social and environmental impacts of Pangue dam construction and the Pehuen Foundation's failure to meet the majority of its goals.
"The IFC and the Bank Group as a whole must bear responsibility for failure to correct and prevent repetition of problems, like those in Pangue-Ralco, that both the bank and its critics have long recognized. In the present case the Bank must recognize and take responsibility for the damage the IFC's project has inflicted on the Pehuenche, as well as the far greater damage that mass deportation from Ralco will cause. The Bank must call publicly for a halt to the resettlement, at least until adequate and comparable land can be found, and the Pehuenche themselves arrive at a truly informed and democratic acceptance of the plan. It must also make full restitution to the people whose lives it has already disrupted and impoverished. In short, the Bank and the IFC cannot chalk up Pangue and Ralco to a 'learning experience' and walk away from the human rights abuse they have precipitated”.(106)In April 1998, one month after the publication of the two reports, the World Bank's President J. D. Wolfensohn recognised that the IFC badly handled the evaluation of Pangue's building impacts and that, since the World Bank contributed to create the problem of the Pehuenche families, it should help to find a solution.(107)In July CONADI called for the block of ENDESA works in Ralco area for violation of the Ley Indígena . The following month CONADI director Domingo Namuncura, appointed a year before, was fired by the government. The appointment of a new director, Rodrigo González, of non-indigenous origin, was not accepted by many Chilean indigenous peoples. In October, CONADI started to examine permutes of land related to Ralco. The plans were to relocate the community of Ralco Lepoy to the locality El Barco and the community of Quepuca Ralco to El Huachi . Since January of this year, more or less 82 land permutes have been judged: 70 have been accepted and 12 refused. There are still 8/9 families that refuse any kind of resettlement. The Mapuche members of CONADI deserted these meetings protesting against the decision of examining the permutes before the judgement on the CONAMA approval of ENDESA environmental impact assessment for Ralco. The Governor of the Biobío region, Juan Carlos Coronata, affirmed that the families whose land-permute has been already approved could move to the new sites only after next 23 rd of July, deadline for the scrutiny of ENDESA Development Plan. The plan is aimed at ensuring Pehuenche social sustainability.Last April, Enersis, owned by ENDESA ESPAÑA, bought an additional 35% of ENDESA Chile, so reaching the 60% of controls of the Chilean electric company. The business was frozen by the Chilean Anti-Monopoly Commission because of the dangers of this vertical concentration for Chilean energy consumers. ENDESA Chile generates the 55% of the energy used in the Central Interconnected System (SIC) power grid, owns the 100% of Transelec, which administers SIC's high-tension lines (namely electricity transmission), as well as of 75% and 90% respectively of power distributors Chilectra and Rio Maipo. In May 11, the Anti-Monopoly Commission allowed for the conclusion of the operation adding some precautionary measures.(108) VIa8. NGOs' and International Community's actions in support of the Pehuenche. The response of ENDESA and the Chilean government. Various NGOs and associations have been involved in the support of the Pehuenche in the case of the Biobío.In 1996 FIAN (FoodFirst Information & Action Network) started an urgent action to call the block of the building of Ralco as threatening the right to feed themselves of the Pehuenche.A group of NGOs formed by Amerindia, Amigos de los Indios, Friends of the Earth, Asocición Pro Derechos Humanos (APDH) and Instituto de Estudios Politicos para America Latina y Africa (IEPALA) subscribed a platform in defence of the Biobío, trying to put pressure to ENDESA ESPAÑA.The GABB (Grupo de Acción por el Biobío) has been on the scene since 1991. It presented a legal action against the building of Pangue Dam already in 1992, but the first decision on its favour by the Court of Concepción was revocated by the Supreme Court. In 1995 it filed the above-mentioned complaint against IFC to the World Bank's Inspection Panel. In 1997 it had a meeting with Dresdner Bank's board, in Germany.The RIAP (Red Internacional de Apoyo al Pueblo Pehuenche y al Biobío) works mainly at the international level. It has organised conferences about the case. Since 1997, it leads two groups of discussion on internet, one related to the Biobío connected events, one related to ENDESA ESPAÑA. It has denunciated the case of Ralco at WGIP 1997/98 sessions.The 'Group of Women with the Strength of the Earth' (Mapu Domuche Nehuen) works intimately with GABB and RIAP and organised the diffusion of information about the case. Las April it promoted a march of protest against Ralco Dam.The 'Council of all Mapuche Lands' (Consejo de Todas las Tierras) is one of the most known organisations at the international level. It participates at the works of the WGIP since many years. Actually it is presenting a campaign about non-recognition of Mapuche land in association with the International Foundation 'Lelio Basso' and it has organised a march from Mapuche regions to Santiago to call attention to this issue.A couple of abroad organisations, the Mapuche International Link (in England) and the Project of Documentation Ñuke Mapu (in Sweden) have tried to organise international pressure in conjunction with all the Mapuche living in Europe. They have emitted declarations(109), organised conferences, send request of solidarity to human rights NGOs, collected signatures to be sent to the Chilean Presidency and made a proposal for a resolution of the European Parliament on Mapuche issues, including the Biobío case.At the level of international community's action, the representatives of NGOs, local communities and indigenous peoples that gathered in San José, Costa Rica, in occasion of the COP7 of the Ramsar Convention last May, produced a declaration entitled 'People and wetlands: a vital link'. They expressed their opposition to dams building and asked for a moratorium in the construction of hydroelectric dams as a pre-condition to the formulation of a sustainable energy policy with the involvement of local communities, indigenous peoples and NGOs.The European Parliament accepted at a first stage the above-mentioned proposal of resolution about the Mapuche's situation. The newly elected Parliament will meet next September.The Latin American Coordinator of 'Pastoral Indígena', Xavier Albó, wrote a public letter to ENDESA ESPAÑA President Rodolfo Martín Villa to ask to stop the building of Ralco in respect of Chilean Ley Indígena and of the norms established by the Spanish Agency for International Cooperation:”Promover la participación activa de los pueblos indígenas en la identificación, formulación y ejecución de todo proyecto de desarrollo, tanto bilateral como multilateral”.(110)He also recalled the document emitted last year by the European Commission entitled 'On support for indigenous peoples in the development cooperation of the Community and Member States'.(111)Talking about ENDESA ESPAÑA, one of the claims most underscored by NGOs and Mapuche organisations is that, on ground of the strict relations with the Spanish State, ENDESA should reflect the State's commitments (alone or as a part of the European Community) in development projects. EE usually replies by affirming that it was not involved during the building of Pangue Dam and that, in any case, the development of the whole country justifies a project like Ralco and therefore the Ley Eléctrica of 1982 should prevail over the Ley Indígena . This seems to be the major argument of discussion since CONADI attitude in the last months. In theory the new laws prevail over the older ones and the specials over the normatives (general); Law 19253 is special and more recent. However it seems that ENDESA strategy be to go on with the operations in Ralco area, as to present thing as already happened. This would make a non-sense to judge against something already built and potentially working.When it comes to the government, the major critics are about the disregarding of the Acuerdo de Nueva Imperial . Agreement promoted by the former administration and that led to the Ley Indígena . According to many of the above mentioned NGOs, the motivation for this would be in the interests of the State in Ralco building, exemplified by the fact that President Eduardo Frei is shareholder of the enterprises that have been charged with the building of the roads and the other parts of the dam, Kopper S.A. and Besalco S.A. The government affirms its good faith towards Mapuche people. It recalls its request to the parliament (last June, 2 nd) of urgent ratification of ILO Convention 169, blocked in the Congress since 1991. As a matter of fact, last April the government expressed the intention of revising the Ley Indígena to improve CONADI action and law protection as well. Chilean indigenous peoples expressed their worry about the possible elimination of the restrictions on indigenous lands provided by art. 13. VIb. Environmental, economic, political and cultural issues brought up by the case. A brief analysis. This paragraph will try to examine four issues raised by this case that share common features with other cases and are of general interest. VIb1. Dams building: the costs involved. The case of Pangue and Ralco demonstrates that in a hydroelectric project, there are, often if not always, several environmental and social costs. Many times States, private corporations (TNCs) and lending agencies do not take into account a good part of them in their assessment of the project impacts. Professor Z.J.B. Plater has shown(112) that in many occasions the environmental problems related to dam building are called by economist as 'social costs' or 'external costs', tending to depreciate their gravity and importance. He has indicated three different classes of diseconomies related to these projects. The first class, system effect costs, includes: displacement of indigenous peoples, loss of rare and endangered wildlife, archaeological losses; the second class, project’s caused diseconomies, includes: deforestation, degradation of water quality, loss of fertilising effect down-stream, seismic effects, spread of diseases, irrigation problems, potential sabotages, loss of local resources and alternative technologies, local disputes; the third class includes problems related to the dam's bad project, as sedimentation and spillway. The bad consequences associated with hydroelectric projects have been confirmed in several occasions.”...The huge dams require the flooding of large tracts of forest and agricultural land, causing the displacement of many thousands of people living there...There are also health effects, as ecological changes associated with dams and irrigation canals spread schistosomiasis (carried by snails), malaria and other waterborne diseases”.(113)VIb2. World Bank's strategies. World Bank, as other Multilateral Development Banks (MDB), has often been in the forefront in big-development projects. It seems that the Bank have a lending target to be increased annually. This favours the large-capital projects over the lower–budget (and low-technology) alternatives, which many times have revealed to fit more with the needs of the target nation and all the environmental and social requirements of the situation. During the process of project’s examination, the engineering perspective dominates over the rest, often also for the pressures of States and private companies (TNCs) interested. The momentum created by the possibility of participate to a large-capital project overshadows other considerations regarding the environment or the people affected, sometimes missing the real motivations of a development project. One question associated to that is the strong push of lending agencies for privatisation. In the 1980s the, the World Bank and the IMF used debt renegotiations as a way to force developing countries into implementing structural adjustment programs (SAPs) in their economies. The SAP measures included large-scale deregulation, privatisation, currency devaluation, social spending cuts, lower corporate taxes, expansion of the export of natural resources and agricultural products, and, in particular, removal of foreign investment restrictions. In order to obtain the foreign aid to service their massive debts, developing countries were compelled to become export-oriented economies, selling off their natural resources while rapidly increasing their dependency on foreign investments. This implied also the decreasing of State’s control over economy, and the watering-down of environmental and social restrictions that could be seen as a block to those investments. For what concerns the World Bank, this strategy is presently confirmed by the declining volume of lending by IDA(114) (Bank’s member specialised in the lending to poor countries at sub-market rates of interest) in the last decade, while IFC volume of lending to private corporations, at market rates, is dramatically increasing.(115)“The Bank’s turn toward privatization has been associated with a tendency to deemphasize social and environmental considerations as criteria for loans (exemplified within the World Bank Group by the approach of the International Development Agency), in favour of a more exclusively economistic approach that focuses on optimizing positive rates of return on development lending. These trends are clearly in line with current political pressures for privatization, deregulation and denationalization, which are integral aspects of the accelerated globalisation of the world economy. Pressures for competitiveness in global markets are widely adduced as necessitating the removal of political and governmental controls from economic activity, and the consequent relaxation of institutional safeguards for social and ecological values”.(116)VIb3. TNCs’ influence over State’s actions. Another point raised by the Biobío case is how economic interests represented by a private corporation can put pressure on the State and its branch (legislative, executive, judiciary).This must be seen in the context of the process of globalisation mentioned above. This increasing process of economic standardisation and concentration has taken a lot of political weight in the hands of the biggest TNCs. The process of privatisation weakens State’s control over economic activity and exacerbates the tendency for development projects to operate beyond effective public scrutiny and political control.“Even strong national governments are no longer able to exert any sort of control over TNCs. If a country passes a law that TNCs regard as a hindrance to their further expansion, they merely threaten to leave and establish themselves elsewhere...Indeed, TNCs are now free to scour the globe and establish themselves wherever labor is the cheapest, environmental laws are the laxest, fiscal regimes are the least onerous, and subsidies are the most generous”.(117)If the political and social environment where TNCs set their activities poses too many obstacles, they often use their economic weight to overcome these obstacles threatening the State to invest in other countries and often obtain permits for operations that in their home-country would be illegal.This is probably what has made Chilean government so ambiguous in standing upon its duties towards Mapuche. The change of opinion by CONAMA about Ralco Environmental Impact Assessment seems to exemplify this assertion(118), as it could be also in the case of the substitution of two CONADI directors (Maurizio Huenchulaf and Domingo Namuncura) of indigenous origin that opposed the Ralco project (Huenchulaf in particular).TNCs have now the power to force national governments to defend corporate interests whenever such interests are in conflict with those of the people whose interest the governments have been elected to protect. VIb4. Indigenous peoples’ strategies. Indigenous peoples’ organisations and associations have developed along the years different strategies to claim their rights reach public opinion and exert pressures. Clearly the various options chosen by indigenous peoples change according to different data: their number (demographic value), their economic resources (international or national support), the legal framework of the country where they live (existence of laws recognising their rights).Here are exposed some of them that are relevant in the case of the Pehuenche.One important way has been to take to the international level their questions so to obtain pressures over their State when this latter violates their rights. This has been done mainly by establishing solidarity links with other indigenous peoples and creating common international organisations(119) as ‘umbrella’ for their claims, often similarly related to land rights recognition and environment protection, in front of the international organisation. The organisation of conferences and NGOs meeting has also served this goal.Inside the above-mentioned forum, usually indigenous peoples’ organisation and supporters use to underline the symbiotic link they have with environment. This was done in order to push States and IGOs,(120) sometimes more sensitive to ‘green pressures’, to enact legislation to recognise indigenous peoples’ role in the preservation of bio-diversity. This kind of action has resulted in the international recognition of this link in the context of Rio 1992.Another element stressed by indigenous peoples to have their rights recognised and respected, is the sacred relation they have with land and nature in general(121); often stressing the spiritual importance rather than the material one (‘feed one self’) reach more easily the attention of public opinion, not always close to these concepts and therefore curious and fascinated by the cultural value of land for indigenous peoples’ survival.In the case of Mapuche-Pehuenche, all the above mentioned elements have been observed. In addition, other more traditional activities as marches, roadblocks, letters, petitions and legal actions, have been used. Internet seems to have become a very important mean to spread knowledge about indigenous peoples’ culture and claims. Occupation of land, or other confrontation actions have regarded more other Mapuche’ claims as in the case of the land dispute with the Private Company ‘Forestal Miminco’, in the province of Arauco. VIc. Possible legal resorts for the Mapuche-Pehuenche at the international level. Chapter IV has given an overlook of the main international instruments which refer explicitly to indigenous peoples' rights, or that can be used by these latter to claim protection for their land and environment, even if these instruments are not directly devoted to them. This paragraph will examine which of those instruments are relevant to the Biobío case and to the protection of Pehuenche rights. Many of the rights whose violation is alleged by Pehuenche have been affected by ENDESA (sometimes in conjunction with IFC) acts. The State has in these cases an obligation to protect the rights of indigenous peoples living in its territory.Different NGOs have denounced the injustices suffered by Pehuenche in the meeting of the Working Group on Indigenous Populations, but this forum, although bringing to a widerpublic the knowledge of the situation of Pehuenche, has neither judicial feature, nor function of this kind. The WGIP declaration could be used to show several rights not respected in this case, primarily the recognition of the indigenous peoples' ownership of their traditional lands, the effective participation of indigenous peoples in projects that affect them and the principle of free and informed consent to decisions that regard them. But, still, is only the draft version of a non-legally binding document.When it comes to an individual petition to the Human Rights Committee under the Optional Protocol of the ICCPR, the possibilities to obtain redress for Pehuenche are much more concrete. Chile has signed both the Covenant and the Optional Protocol, so it is possible to imagine that the individuals that started a legal action against the decision of CONAMA (State's agency for the environment) of June 1997 to approve the Environmental Impact Assessment prepared by ENDESA for Ralco building, could, after exhausting the legal remedies present in the Chilean system, file a petition to the HRC. When looking at the cases presented by indigenous people and examined by the Committee in relation to the violation of art. 27,(122) it is possible to notice the presence of important precedents in the Lubicon Lake Band decision , Länsman case and Jouni Länsman case . In particular if these cases are seen in conjunction with General Comment 23 to art. 27, when it says that the ” Committee observes that culture manifest itself in many forms, including a particular way of life associated with the use of land resources, specially in the case of Indigenous Peoples ”.(123) It is out of doubt that the building of Ralco dam (as it has happened with Pangue), with the consequent resettlement of Pehuenche families and the loss of the traditional life-system based on veranadas and invernadas, would represent a clear breach of the culture (as linked to the way of life) of Pehuenche. The importance of consultation with affected people has been underscored in the two above-mentioned cases against Finland. This would concur to support Mapuche's complaint. Unfortunately the Committee's decisions have not encroached any principle of free and informed consent, principle relevant to the protection of indigenous peoples from any projects affecting them.In the case Hopu et al. v. France the HRC accepted the applicants' argument that the building of a hotel complex over an area that contained an ancestral cemetery was a violation of their rights to privacy and to family. Following this case, also arts 17.1 and 23.1 violation could be alleged in the Biobío case. Pehuenche could base themselves on the interpretation of the term 'family' given by the HRC in the Hopucase.(124) This case seems to have a big relevance in an eventual petition of Pehuenche, since the building of the Ralco would flood an area where Pehuenche affirm the existence of sacred sites and ancestral cemeteries. Furthermore, in case of petition to the HRC, the Pehuenche could also ask the adoption of interim measures of protection under rule 85 of HRC rules of procedure.Chile has also ratified the Convention for the Elimination of Racial Discrimination, but it does not seem to exist a precise allegation that Pehuenche could make under this document.(125)In 1996, the NGO FIAN started an urgent action on the case of Pehuenche and Ralco, alleging that the building of the dam constituted a violation of their right to food as affirmed in ICESCR art. 11.1 about adequate standard of living. This Covenant does not contain an individual complaint mechanism so far.Chile has ratified the Convention on Biological Diversity in September 1994. Apart what has been said about the lack of any provision for independent monitoring and the lack of a formal non-compliance procedure,(126) it is interesting to note the declaration made by Chile at the moment of the ratification:”The Government of Chile, on ratifying the Convention on Biological Diversity of 1992, wishes to place on record that the pine tree and other species that the country exploits as one of its forestry resources are considered exotic and are not taken to fall within the scope of the Convention”.(127)The other UNCED documents do not provide legal means that Pehuenche could use to have their case considered by an international body.The ILO Convention 169 is often cited by Mapuche NGOs or Pehuenche associations to underscore the government failure to recognise and protect Pehuenche and, more in general, Mapuche rights to their traditional land and the need for their effective consultation in case of decisions or actions affecting these rights. Unfortunately the Chilean State has not yet ratified the Convention. Although its supervisory system is not really used by indigenous peoples, the ratification of Convention 169 would certainly push the Chilean State to change its ambiguous attitude towards the Biobío case.The complaint filed by the NGO GABB in 1995 to the World Bank's Inspection Panel to allege the IFC violation of the Bank's policies on environmental impact assessment and indigenous peoples has been dismissed on the ground of the non-adherence of IFC to this directives and its non-submission to the control of the Panel. In light of the clear admission of responsibilities of IFC in the case(128) and of World Bank's attitudes as analysed in last paragraph, a question of irresponsibility of this institution comes out. This issue will be analysed in next paragraph.A mean to seek for redress not explored so far would be a petition to the Inter-American Court of Human Rights. Chile has ratified the American Convention on Human Rights in 1990, accepting the jurisdiction of the Court. Nevertheless a petition to the Inter-American system share the admissibility requirements of the ICCPR and the American Convention does not contain a provision similar to ICCPR art. 27. It has to be seen if American Convention arts. 11 (right to privacy) and 17 (right to family) would be interpreted so widely as the HRC did with ICCPR arts. 17 and 23 in the Hopu case . The cases exposed in Chapter IV, para. h, have been all handled by the IACHR, often acting only as OAS organ and basing its work on the American Declaration on the Rights and Duties of Man. In the Yanonami case, the IACHR retained that the Brazilian government had violated the Yanonami rights to life, liberty, personal security, residence, movement and health because of its failure to take timely and effective measures " on behalf of Yanonami".(129) Also in the Huaorani case the Commission, though not formally yet, underscored the responsibility of the State towards projects and decisions that affect indigenous peoples living in their territory. Moreover the IACHR affirmed that indigenous peoples' life and health could be violated simply by attacking their way of life, their land and their culture. In both the cases reference was made to ICCPR art. 27. VId. Major obstacles. This paragraph will try to assess the major obstacles encountered by indigenous peoples when seeking for legal redress at the international level, as exemplified by the case of the dams on the Biobío. This would be done taking in account the analysis of the actual processes of globalisation and privatisation and their impact over State's control of economic activities.”The denials and violations of rights in this case resulted partly from the institutional cultures of the IFC, the World Bank and ENDESA. They must also be understood within the broader context of the global economy and the political climate in which the World Bank Group, and other public institutions engaged in private-sector lending, operate. The conflict between economic privatizatoin, human rights and social, cultural and environmental values has become an increasingly pervasive feature of the contemporary world...”.(130)VId1. The question of the irresponsibility of the actors involved. The arguments exposed above in paragraph b and the attitude of ENDESA and IFC in the Pangue and Ralco case, pose a question of irresponsibility of these actors for their actions. ENDESA was able to avoid the publication of two highly critical reports that showed its lack of respect of the environmental and social as contained in the loan agreement with IFC, by threatening with legal action this latter, a member group of a UN Specialised Agency. When IFC finally comes out in February 1997 with putting ENDESA in front of its responsibilities, ENDESA repaid the loan of IFC with a private bank new loan. This case shows also how little power lending agencies have to compel the recipient to comply with whatever standard or restraint they can have imposed as conditions to grant the loan. Even more if the TNC in question can so easily change loan source without taking any responsibility.The IFC as well represents this 'structural irresponsibility. The IFC incorporates environmental and social covenants into each loan agreement with a private recipient, but it reserves the prerogative to keep part of all of these covenants secrets, selectively eliminating the opportunity for public disclosure of its accountability. The IFC Vice-President Carol Lee stated in the forum organised by AAA CfHR that IFC project staff, which colluded with ENDESA personnel in using the Pehuen Foundation for Ralco dam, did not communicate its actions to the IFC administrators in Washington.(131) In the same forum (November 1997) the IFC admitted ” serious mistakes ” in the Pangue case, in particular regarding project's indirect impacts on indigenous peoples. However IFC considered these mistakes as part of its 'learning curve' and, when asked about its responsibility in the case, no answer was given. World Bank's President J.D. Wolfensohn clearly admitted the bad handling of Pangue project and the responsibilities of IFC (that still owns a 2.5% of equity interests in Pangue S.A.) in 1998.(132) Nevertheless Pangue dam has been built, the IFC loan has been repaid and Ralco dam is under construction.”Bank officials from President Wolfensohn down are wont to cite the Bank's numerous operational directives when responding to criticisms of Bank performance. Over the years, the Bank has adopted these directives on topics such as resettlement and the special problems of indigenous peoples, in effort to prevent the recurrence of abuses perpetrated in previous Bank-funded projects. In fact, the Bank's policy on indigenous peoples is 'strong'. Its Operational Directive 4.20, promulgated in 1991, spells out in enlightened and detailed terms the importance of ensuring indigenous peoples' full and informed participation in implementing development projects that impinge upon them, protecting their lands, etc. (World Bank 1991). The problem however, is not with the letter of the Bank's policy directives, but with the way its projects subsequently proceed to violate them. ENDESA and the IFC violated virtually all the main provisions of the operational directive on indigenous peoples in the Pangue-Ralco project, a project that began after it and other relevant operational directives had been in effect for a half-dozen years. The Pangue-Ralco project also blatantly violates the World Bank's directive on resettlement, which has been on the books since the early 1980s”.(133)VId2. The question of international standards enforcement. The partial disregard of World Bank's policies on environment impact assessment, indigenous peoples, resettlement and disclosure of information by the IFC and the non-respect of the part of this policies that was contained in the loan agreement by ENDESA calls into question the issue of enforceability of international standards. The failed complaint filed by Pehuenche (through GABB) to the Bank's Inspection Panel clearly exemplifies it.The lack of monitoring and petition system in the Bio-diversity Convention does not make this instrument workable for these kinds of conflicts. Being ILO Convention 169 still non-ratified by Chile, the remaining possibilities are the individual petitions under the ICCPR (HRC) or the American Convention on Human Rights (IACHR). Both the instruments are not directly related to indigenous peoples and in the second one there is not even a specific article like art. 27 of the ICCPR. The Chilean State enacted law 19253 ( Ley Indígena ) in 1993. This represents a big step forward in the protection of indigenous rights. Nevertheless the case shows the lack of some important elements:These elements can easily be widened to other indigenous peoples. They are clearly affirmed in the UN Draft Declaration, but only the first two are actually considered and entrenched in a legally binding document. Indeed, how explained above,(134) the ILO Convention 169 allows for exceptions to the principle of consent. The principle of effective participation has been affirmed also in World Bank O.D. 4.20 on Indigenous Peoples and in the Bio-diversity Convention and Agenda 21.The ratification of the ILO Convention would certainly represent a propelling element on Chilean government enforcement of the above-mentioned principles.Many Chilean NGOs and Mapuche representatives asked for their entrenchment in the Constitution, to give them major weight and avoid question of supremacy with other laws.Finally what seems more effective at the moment is an eventual petition to the HRC, if the dam will not be built in the meanwhile.(135)One problem related to that, as noticed to me by Dario Jaña (co-ordinator of RIAP, Red Internacional de Apoyo a los Pehuenche ), exchanging comments on the case of the Biobío, is the material difficulty to find lawyers that work on the case. This non-irrelevant problem has also be underscored by the Special Rapporteur Mrs. Erica I. Daes in its 'Preliminary report on the relationship of indigenous peoples with land':
- the recognition of the special link of Pehuenche to their lands;
- the effective and culturally appropriate participation of Pehuenche to the decisions affecting them;
- the principle of free and informed consent of Pehuenche to every project impacting their lands, territories, resources, cultural traditions.
”In other settings, there is no effective legal system to provide a remedy, or indigenous peoples cannot afford to pay for necessary professional legal representation, or they cannot use the language required by the courts or legal agencies, or they cannot travel to courts or legal agencies, or they simply do not know that legal remedies may be available. As with other human rights, the poverty, geographical remoteness and cultural and linguistic differences of indigenous peoples creates severe impediments to the protection of their land, territorial and resource rights”.(136)VIe. Possible outcomes. The following paragraph will try to expose which, in the opinion of the author, could be the means to solve or help to solve the problems discussed above and evidenced by the case of the dams on the Biobío. It could reasonably be said that all the improvements suggested had to start from two assumptions emerged in the whole of this paper:VIe1. Improving the control on the funding procedures. In the paragraph about the obstacles evidenced by the case, it has been discussed the problem of the irresponsibility of the actors involved. For what concerns lending agencies, IFC has demonstrated a critical lack of accountability for its actions. Following international pressure that also the case of Pehuenche has contributed to bring, IFC has taken various steps to enhance its performance in funding development projects. Last year, after a long public comment period, it adopted: a Procedure for Environmental and Social Review of Projects; a Policy in Disclosure of Information; a Operational Policy on Environmental Assessment (O.P. 4.01). It also announced the future adoption of policies on Indigenous Peoples (O.P. 4.10), Safeguarding of Cultural Property (O.P. 4.11), Involuntary Resettlement (O.P. 4.12), Safety of Dams (O.P. 4.37).Nevertheless different perplexities can be advanced. The Procedure for Environmental and Social Review of Projects (July 1998, revised December 1998) announced in the introduction:
- the need for effective participation of indigenous peoples in decision affecting them;
- the principle of a free and informed consent of indigenous peoples to these decisions.
“...IFC applies World Bank Group environmental, health and safety guidelines to all projects. In sectors where no appropriate IFC policies or guidelines exist, IFC applies relevant internationally recognized standards. Furthermore, the project sponsor must ensure compliance with host country requirements”.(137)But then clarifies:“IFC’s client base and project cycle are different from those of the World Bank. IFC’s environmental and social policies, while harmonized with World Bank policies, are adapted to the private sector nature of IFC’s business.(138)This leaves a big scope for interpretation. The Policy on Disclosure of Information (September 1998) seeks for improvements by giving publicity to ‘summaries’ of the environmental and social covenants that the IFC negotiates with borrowers for specific projects, but these summaries would have only the status of interpretations with no legal force of commitments. The Policy on Environmental Assessment tries to address the need for effective participation of the people affected by the project. The forthcoming policies are a promising step towards IFC alignment to World Bank Group’s commitments. Still, what lacks is IFC submission to the Inspection Panel’s scrutiny. At a more general level, some doubts could be advanced about the Panel too, since this body remains an internal part of the World Bank Group, as it is the Panel’s procedure. Therefore an important action that World Bank could undertake, as UN Specialised Agency(139) with human rights obligations under the UN Charter, would be the establishment of an independent monitoring and complaint system to evaluate the compliance of the Bank’s members to its environmental and social policies and international human rights standards.“The Bank has repeatedly recognized and criticized such ‘mistakes’ in internal Bank reviews and reports. These have frequently led to the drafting of new policies and the hiring of more anthropologists and other expert advisory staff, who in turn have prepared more forceful and specific operational directives, such as the ones on indigenous peoples and resettlement we referred to earlier. Many have been flouted by projects like Pangue-Ralco. In sum, the Bank’s ‘learning curve’ has had a cyclically recursive configuration... The Bank has yet to demonstrate the ability to put enough teeth into its own directives and monitoring procedures to make them reliably enforceable. This reluctance clearly stems from a deeper unwillingness to impose serious impediments to the overriding pressure to lend”.(140)As the case shows the improvements of IFC’s performance would not impede the actual course of things. The repayment of IFC’s loan by ENDESA and the funding by the German Dresdner Bank pose the problem of ensuring a better performance also by private lending banks. Various NGOs allege that Dresdner Bank is not conforming to the commitments undertaken by its country, alone or as member of the European Union. Furthermore the German Bank is signatory of a UNEP Declaration of Banks for Environment. However a more strict code of conduct should regulate private banks’ activities, leading to the incorporation of World Bank-like policies and guidelines. VIe2. Human rights responsibilities for TNCs. The need for codes of conduct has been often affirmed in the case of TNCs (which, as private companies, could be seen as including also private banks). This instruments should entrench the principle of effective participation of the people affected by TNCs’ projects and their free and informed consent. Also important would be that the verification of TNCs’ compliance with these codes be verified by an independent body that could hear also to individual complaints. In different contexts, awareness of the responsibilities that TNCs have in the respect for human rights, in view of their enormous economic power, has emerged since several years. At UN level, already in 1974 the Economic and Social Council, with resolution1913 (LVII), created the Committee for Tribunal Enterprises with the task, among others, of producing international standards of conduct for private companies. In 1986 the Experts Group on Environmental Law to the World Commission and Development recommended the adoption world wide of OECD ‘Guiding Principles for Multinational Enterprises’ that included also private banks.(141) In 1994 the WGIP commissioned to the UN Centre on Transnational Corporations a report on TNCs’ activities with adverse impact over indigenous peoples’ land rights. The report made some important points on the relation between TNCs’ projects and indigenous peoples:“21. The adverse social and environmental impacts of TNC projects, as perceived by the indigenous peoples who are affected, tend to be markedly lower in cases where there was a high degree of indigenous participation in planning and management, and in sharing benefits...In 1997, in its 15th session, the WGIP adopted some ‘Guidelines relating to transnational corporations and indigenous peoples submitted by the indigenous preparatory meeting (26-27 July 1997)’.(143) The Guidelines incorporated, as their first point, the principle of free and informed consent and, as second, the principle of consultation. It contained also provisions for a monitoring and a recourse mechanism. In 1998, two indigenous NGOs, the Indian Movement ‘Tupac Amaru’ and the Indigenous World Association, have sent a statement in the context of the Sub-Commission meeting on the ‘Realization of economic, social and cultural rights. The question of TNC’. The statement regarded the approval of a TNCs’ code of conduct and underlined the importance of UN action in this field.(144) Amnesty International produced in January 1998 a document called ‘Human rights principles for enterprises’ that has as main feature the demand for TNCs formal commitment to human rights international standards and the creation of a monitoring system to ensure the respect of this commitment.(145)To finish with, last May, in Madrid, the President of the Inter-American Bank for Development demanded to the Spanish Senate (Commission of Inter-American Affairs) the creation of an ethic code of conduct for Spanish Enterprises operating in Latin-America.(146)VIe3. Strengthening the link between indigenous peoples’ rights and environment protection. The second paragraph of Chapter III has analysed the relationship of indigenous peoples with environment in a functional sense, namely whether the recognition of the rights of the former helps the protection of the latter and vice versa. The example of the Convention on Bio-diversity, and its article 8j in particular, has shown how protection of the environment is not in absolute benefiting indigenous peoples’ rights if it does not take into account the importance of their rights to free and informed consent and to effective participation in case of decisions affecting them. For what concerns the benefits that the recognition of indigenous peoples' rights brings to environment protection, this has been demonstrated in several cases and affirmed in various occasions.(147) Paragraph b of this Chapter has showed also as this link constitutes an important strategy for indigenous peoples to reach State’s recognition of their role in the conservation of bio-diversity and build alliances with environmental NGOs and States sympathetic to ecology. Nevertheless, focusing too much on this association may bring some danger. This could be exemplified by the stance of ecologists towards indigenous peoples who no longer practice environmentally sound use of their lands. The question is that, increasingly, indigenous peoples lose their ancestral isolation (mainly in the Rainforest). Once in contact with outsiders, it is very difficult for them to remain untouched by the cultural novelty that the former bring to them. They start to seek for medical services, schools, access roads, electricity, clean water and other necessities. It appears that once indigenous peoples step out of their world and desire the benefits of western development, they are no longer candidates for environmentalist support. This discourse can ‘primitivises’ indigenous peoples not recognising the dynamic character of their traditions. The other risk is to support them only in function of the environment protection they contribute to and so not recognising, as worth to be supported, indigenous peoples living in less precious environment.
22. TNCs find it easier to involve indigenous peoples in decision-making when indigenous peoples’ rights to their lands are secure... Land rights are a necessary precondition for effective participation. Secure land rights are not sufficient, however. Indigenous peoples must have the capacity to obtain and assess all relevant information about the structure and past performance of the TNC, about the industry, and about the particular project. They must also have the means of developing an internal consensus regarding the impacts and benefits of proposed projects, and of expressing their concerns during negotiations with TNCs”.(142)“In situations where indigenous peoples have not already been forced off their traditional lands and are using their lands in an environmentally sound manner, the alliance between indigenous activists and environmentalists makes sense in the short run. Indigenous peoples may need to draw on the resources of environmentalist groups and the power of environmental fears in order to gather international attention... The danger in the emerging discourse that credits indigenous groups as being the best keepers of areas, such as rainforests, that are environmentally valuable, is that indigenous peoples without such lands may be excluded from the discussion”.(148)In conclusion this issue recalls the need to strengthening the relation between indigenous peoples’ rights and environment protection starting from the recognition of indigenous peoples’ distinct link with their lands.VIe4. The cultural value of land, international instruments and State’s role. One of the main arguments that this paper tried to underscore as important for the recognition of indigenous peoples’ rights and land rights in particular, is the value that land assume for their culture. The first paragraph of Chapter III has exposed how the ancestral territory is also a spiritual element of indigenous peoples’ cosmology and how the land, their land, is determinant for their survival both at the material and at the cultural level. The case of the dams on the Biobío, shows clearly how Pehuenche are strongly linked to their land already from their name, ‘people of the pehuen’, being this latter the fruit of the pine tree that characterises their land. The land and the river have precise cultural references in their traditions, in this land are their ancestors and their sacred places, and the araucaria pine tree is also at the centre of their religious rites. So the land is one precise territory non-exchangeable with others. This argument can be used for Mapuche in general and for many others indigenous peoples. It has been recognised in ILO Convention 169, in the UN Draft Declaration, in some HRC’ decisions and in the General Comment about Art. 27.(149) Also the World Bank recognised this cultural value in its guidelines, while the Bank’s President confirmed this in its 1999 ‘Proposal for Integral Development’(150) This recalls the relevant task of giving substance to this cultural implications of land for indigenous peoples.At the international level this means the necessity of enforcing a value affirmed by different bodies. The analysis made in paragraph c to the various international instruments or procedure that could be used by Pehuenche to protect their land rights seems to reveal that the individual petition to the HRC under the ICCPR (either art. 27 or arts. 17.1 and 23.1) is the system that has proven to be more effective. However the case of the Biobío, where the building of Ralco is going on while the National Judiciary has still to answer to the legal action against the dam construction, shows also the need for a specific legally-binding instrument that address more promptly situations as the one faced by Pehuenche.At the national level the recognition of the cultural value of indigenous peoples’ land calls for the entrenchment of these recognition in the constitution. In the case of Chile, this could be traduced in the elevation of the Ley Indígena at the constitutional level (to avoid conflict of supremacy with other laws), adding clear measures of protection and monitoring of Mapuche (and the other Chilean indigenous peoples) land rights, as their right to effective participation. Other relevant step would surely be the ratification of the ILO Convention 169 in view of its rigorous application.
Conclusions In order to look at the conclusions of this paper, first it should be recalled this latter’s main objective: the possible ways of protection of indigenous peoples’ right to land. Through the analysis of the case and of the issues brought up by it, different conclusions have been drawn.Firstly, indigenous peoples’ land rights nowadays can be threatened also, if not mainly, by non-State actors as Multilateral Development Banks and transnacional corporations. This is due mainly to the actual process of globalisation and associated privatisation, with the State’s loss of control on the economic activities taking place in its territory. The case of the dams in the Biobío shows undoubtedly the responsibilities of ENDESA and IFC (World Bank) towards Pehuenche’s rights. IFC alone, and the World Bank as a whole, have taken important steps to improve their accountability in funding development projects. Still, much is to be done to make effective the policies regarding indigenous peoples and environment adopted by the World Bank Group. Especially in consideration of World Bank’s responsibility as UN Specialised Agency.TNCs are generally less susceptible to public criticism and influence than public institutions. They almost invariably lack general policies protecting the human rights and environmental quality of the peoples and regions their operations affect. Transnational corporations have an enormous power to collocate their investments where they receive fewer impediments by the State’s institutional system and law. This calls for the adoption of codes of conduct. These codes should incorporate the main international human rights standards and also specific provisions for the protection of indigenous peoples’ lands (and intellectual property and genetic resources...). The code compliance should be monitored by an independent body with mandate to receive individual petitions about potential violations of one code by one TNC.As second conclusion, it seems important to point to the relation between indigenous peoples rights recognition and environment protection. According to the analysis made in Chapter III and reflected in the case of Pehuenche, it is important to underline how this relation can be fruitful for both sides. Environment can gain a lot from indigenous peoples’ sustainable use of natural resources and ability to have a respectful relation with bio-diversity. Indigenous peoples’ struggle for the recognition of their collective rights to land has demonstrated to achieve various goals and reach a wider attention when indigenous peoples link their survival with the conservation of environment and present themselves as the custodian of bio-diversity. Nevertheless the relation is much more complex and changing according to the different contexts. The risk is to project environmental protection without indigenous contribution and link indigenous peoples’ fate solely to the conservation of a certain biota.For this reason it is of capital importance to recognise each one of these two elements (indigenous peoples’ land rights recognition and environment protection) as having an intrinsic value in themselves and therefore worth to be implemented.The third conclusion makes reference to the analysis of the international instruments and procedures available to indigenous peoples to obtain protection of their land rights. The case seems to confirm the impression that the individual petition to the HRC Committee (alleging the violation of either ICCPR art. 27 or arts. 17.1 and 23.1) is the most effective legal resort that indigenous peoples could make use of. This argument calls into question the applicability of the existing instruments directly related to indigenous peoples: the ILO Convention 169 seems more useful as favouring State’s entrenchment of indigenous peoples’ rights than for its supervisory system. International environmental law does not provide for specific procedures to be used by indigenous peoples. The analysis of the case underlines the need to act promptly when it is needed to protect indigenous peoples’ land or environment. In this sense some perplexity can be advanced about HRC individual petition feasibility.The fourth element regards the question of indigenous peoples free and informed consent and effective participation to decisions and projects affecting them. This issue is correlated with the former three, so far enounced. Indeed codes of conduct and monitoring system for TNC’s, as well as World Bank policies, should incorporate and implement those two principles to ensure the respect of indigenous peoples’ right to land. When it comes to the relation with the environment, the elaboration of the Bio-diversity Convention has shown that environment protection, to benefit indigenous peoples, has to imply their participation and contribution.Talking about international instruments, while the principle of free and informed consent has been clearly affirmed without exceptions only in the UN Draft Declaration,(151) the principle of effective participation has been affirmed also in all the other instruments and procedures overlooked in this paper (ILO Convention 169, World Bank’s policies, HRC decisions, Inter-American Draft Declaration). Public participation is in general important for State’s democracy and transparency in the decisions. One of the clearer examples of the rights of citizens to participate in decision-making is expressed in those agreements that grant public rights of participation in project development through environmental impact assessment procedures.“Public participation in environmental impact assessment procedures is a mechanism partly intended to ensure the full participation of the public and other potentially affected persons in decision-making related to projects likely to affect them and their environment. An environmental impact assessment describes a process which produces a statement to be used in guiding decision-making. Such assessments have emerged since the 1972 Stockholm Conference as an important international and domestic legal instrument for integrating environmental considerations into socio-economic development and decision-making processes”.(152)A real popular participation secures a sound scrutiny of State’s decisions and concurs to maintain human being as starting and final point of politics decisions and development projects. This is fundamental to improve and enhance the State’s role as human rights guarantor in the actual process of globalisation and loss of State’s control within its borders.In the case of indigenous peoples, participation is even more important since it expresses their right to affirm their cultural diversity and the intrinsic value of that. Nevertheless participation alone is not enough, it has to be effective. That means taking into account this cultural diversity in the way indigenous peoples’ participation is attained. It means devising appropriate procedure that recognises the collective feature of indigenous peoples’ rights. Effective participation in a State, in whose territory live indigenous peoples, lays the basis for a democracy in line with international human rights standards.Finally, it seems important to conclude this paper recalling an element that should be at the basis of the principle of effective participation and of the other points mentioned here. The recognition of the special link that indigenous peoples have with land, with their land. It is fundamental to underline how land is included in a holistic vision of life that contains all the elements of the environment (the sky, the mountains, the river, the sun, the rain, the trees, the animals) and the human beings (the living and the dead, the ancestors) without distinction. The cultural value that land assumes for indigenous peoples makes impossible to resettle them without destroy their traditions, their spiritual life, their collective memories and knowledge. Accepting this means the recognition of the right to cultural diversity (clearly having in mind international human rights standards). This value should be at the basis of the redaction of codes of conduct for TNCs, policies for lending agencies and international instruments imposing obligations to the State. This value should be the starting point to strengthen the relation between indigenous peoples’ rights recognition and environment protection. Cultural value of indigenous lands is also the most important justification for their right to effective participation and it strengthens the principle of free and informed consent.
Acknowledgements The idea for a paper about indigenous peoples’ right to land came to my mind las November, during the 9th week of the Human Rights Master, in Venice. The topic of the week was economic, social and cultural rights, lending agencies and transnational corporations. It was the week of the Agani Conference.One of my Master’s mates, Fernando, from Spain, talked to me about the Mapuche of Chile.After becoming more aware of the situation of this people, I’ve chosen the case of the Pehuenche, a Mapuche group threatened by the building of different dams on the Biobío river. The consequence of this building is the flooding of Pehuenche’s traditional lands and the loss of their environment.The paper has been entirely developed during my second semester in Bilbao.The paper has tried to elaborate on the above-mentioned material to give some perspective on the topic of indigenous peoples’ right to land and suggest future developments of research. I would like to thank my supervisor Natalia Alvarez to put her precious knowledge at my disposal and to teach me how academic research demand rigourness. I want also to thank Aitor Urkiola for its enormous availability, for its patience in answering to my requests and for his determinant comments on various issues of my paper.I would like to thank, among many persons that helped me in this work, Jesús Gonzalez of Mugarik Gabe, to accede me to the NGO’s material. I’m proud to thank Oscar Paillacan for the comment he exchanged with me and for giving me the Mapuche perspective on the land question and on Mapuche’s culture and traditions. To finish I would like to praise all the persons with whom I’ve exchanged my ideas on the subject, in particular Dario Jaña, co-ordinator of the Internet discussion groups on the case of the Pehuenche and the Biobío.Lorenzo Nesti
Bilbao, July 1999.
| Tvfaci mapu mew mogeley wagben | En este suelo habitan las estrellas. |
| Tvfaci mapu mew mogeley wagvben
Tvfaci kajfv wenu mew vlkantuley Ta ko pu rakiduwam Doy fvta ka mapu tañi mvlen ta komv Xipalu ko mew ka pvjv mew pewmakeiñmu tayiñ pu fvcakece yem Apon kvyeh fey tañi am –pigekey Ni hegvmkvleci piwke fewvla ñvkvfvy. (mapudugun) |
En este suelo habitan las estrellas
En este cielo canta el agua de la imaginación Más allá de las nubes que surgen de estas aguas y estos suelos nos sueñan los antepasados Su espírito –dicen- es la luna llena El silencio su corazón que bate. (castellano) |
Elicura Chihuailaf N., El invierno su imagen y otros poemas azules, 1991.
(in: El Cahuín , Centro Cultural Chileno Pablo Neruda, Junio 1998, Nº 6)
Supplied by Carmen Laiz Suarez.June 1999.
| Bibliography | Index | Notes |