PRELIMINARY COMMENT ON ARTICLE 21 OF THE DRAFT OF THE NEW POLITICAL CONSTITUTION OF CHILE RELATED TO THE RIGHT OF INDIGENOUS PEOPLES TO LANDS, TERRITORIES AND THEIR RESOURCES.
Aucán Huilcamán
Expert in International Law
May 8, 2022
Beginning with the first
paragraph of article 21, the wording, content and scope, is sufficiently
ambiguous. Considering that the question is not only the “right to the lands,
territory and their resources”, but rather, the essential issue lies in the
"restitution of the lands, territories and their resources" that were
"taken, confiscated and occupied, without the consent of the Indigenous Peoples". In the case of the Mapuche, this occurred
during the so-called "Pacification of the Araucanía".
In addition, the right to lands, territories and their resources as presented,
places this right in the same constitutional context as the "right to
housing". The great difference here lies in the fact that the Mapuche have
indigenous rights of ancestral territory and resources while the Chilean
citizen will have access to the right to housing only after it has become established
in the political constitution of the country.
Next, the second paragraph of the same article delegates the power and authority over this issue to the Chilean State, especially to the parliament, and it is enough to note that with a parliament that is pro "denialism" like the current one (2022-2025) the results would be completely adverse for the Indigenous Peoples. The second paragraph refers to the concept "land". Again, that paragraph falls below the standard of rights now achieved in contemporary international law and by way of background, Article 28 and other provisions of the United Nations Declaration on the Rights of Indigenous Peoples go much further.
The third paragraph establishes that "restitution constitutes a preferred mechanism of reparation and the restitution of public utility." The subparagraph does not indicate whether the restitution is that derived from the system of "Merced Titles", which represents a reductionism of Mapuche lands, nor does it indicate the type of land and territory, given that in the Mapuche case, there are around 4 legal categories of land and territory. In addition, the issue is not that of the “public interest”, but rather, the legitimate right of an Indigenous People to the restitution of what is rightfully theirs, while what is common and legally public, is associated with the interests of the state.
Likewise, the formulation of the fourth paragraph is very similar to the language of the ILO Convention 169 and this international instrument is ceasing to have validity and interest and effectiveness on the part of the Indigenous Peoples, simply because it has been superseded by other emerging norms regarding the rights of Indigenous Peoples, especially in terms of lands, territories and resources.
In the four paragraphs of the draft, "all Indigenous Peoples" have been placed within the same logic and the same context, even though not having similarities in the scope of law and the history of each Indigenous People.
The version and historical vision of the "old indigenism" of (José Aylwin and José Bengoa) established in the Truth and New Deal report, during the government of Ricardo Lagos, where everything was said and yet nothing was accomplished, is repeated. As a Commissioner, I did not agree (see additional report).
It should be opportunely reaffirmed that the Mapuche People currently have a "special legal status", which originates from the celebration of "Parliaments or Treaties" that are now recognized in two norms of international law and cannot be omitted at the moment of making decisions about the territory and its resources. In addition, said recognition by international law grants and recognizes permanent sovereignty to the Mapuche People over its territory and its resources, which is intrinsically related to the right to self-determination.
In the draft of the new constitution, there is included language that affirms that the international human rights treaties "principles and customs shall enjoy constitutional status." If these matters were given actual application to the rights of Indigenous Peoples and the Mapuche, the ambiguity of the article and mentioned paragraphs would thus be avoided.
Despite the fact that the Conventional members, including those with indigenous "reserved seats" began their mandate with a blank page and differ from other international experiences on new political constitutions (Colombia, Ecuador, Bolivia, Venezuela among others) all of these initiatives were prior to the progress of international law in terms of Indigenous Peoples. In this regard, international law reestablished the "right to self-determination" without any qualification, the "restitution, reparation and compensation of the lands, territories that were taken, confiscated and occupied without indigenous consent", the recognition of the " property or intellectual sovereignty", the "access, control, utility, participation and use of genetic resources", among others, which sets the bar very high for the Conventional and Chile as a State in terms of the rights of the Indigenous Peoples and the Mapuche in particular.
The excessive reaction of the draft conventionalists linked to the Chilean political right, in their claims, only reveal their absolute ignorance of the progress of international law relevant to the Indigenous Peoples and especially in terms of the Mapuche Nation.
Unfortunately, the Conventionalists of National Renewal RN, Independent Democratic Union UDI, Republicans, part of the Socialist Party PS, part of the Party for Democracy PPD, and others, lack knowledge, arguments and only act in the "logic and doctrine of historical Negationism " with regards to the Indigenous Peoples and especially they suffer from arguments in relation to the history and the indigenous rights that affirm the Mapuche People in the Wallmapuche. Although this is not only a matter of ignorance, but reveals the conflicts of territorial patrimonial interests in the Wallmapuche, colonial interests that were acquired by force and violence and are the causes of the current tensions and controversies.
Finally, the Conventionalists of National Renewal RN, Independent Democratic Union UDI, PPD, Republicans and others, must overcome their position of "Deniers" and contribute to the search for understanding and Peace with the Indigenous Peoples and with the Mapuche in particular.
Those reactions which are devoid of arguments from individuals, business leaders and political parties, are simply a move for political advantage to reaffirm their position of rejection of the new political constitution. As eloquent example, we have Juan Sutil ( CPC) who is now asking for an indigenous consultation for the adoption of the draft constitutional norms. However, he has denied the right of consultation of the Mapuche at the time of the implementation of the economic investment projects on the Chol Chol River, the Imperial River and others, despite the fact these development projects will harm many Mapuche communities.
Article 21 and its four paragraphs of the draft of the new Chilean political constitution, relating to lands, territories, and their resources, are lukewarm at best - a ploy for the political right and those who have conflicts of patrimonial interests in the Wallmapuche or southern macrozone - so they can say that they are supporting an "indigenist political constitution". In reality, that could only be said and accepted by someone who is uninformed about the evolution of international law regarding the rights of Indigenous Peoples and international legal practice on the continent and in the contemporary world.
Wallmapuche, Rimuguen Kuyen 2022.
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UN Treaty Study Final Report by Miguel Alfonso Martínez, Special Rapporteur (1999)
HUMAN RIGHTS OF INDIGENOUS PEOPLES
Study on treaties, agreements and other constructive arrangements
between States and indigenous populations
Final report by Miguel Alfonso Martínez, Special Rapporteur
“The Special Rapporteur notes, however, that recognition of "autonomy" for Indigenous peoples within the State (whatever powers or restrictions thereto are established), most probably will not automatically end State aspirations to eventually exert the fullest authority possible (including integrating and assimilating those peoples), nor, in that case, nullify whatever inalienable rights these people may have as such.”
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“The Special Rapporteur also harbors no doubts concerning the much debated issue of the right to self-determination. Indigenous peoples, like all peoples on earth, are entitled to that inalienable right. The United Nations Charter in Article 1 gives blanket recognition of this right to all peoples (enshrining it as a principle of contemporary international law) as does Article 1 common to both International Covenants on Human Rights. This right is also expressly recognized for indigenous peoples in Article 3 of the Draft Declaration. In his view, any contradiction that may emerge between the exercise of said right by Indigenous peoples in present-day conditions and the recognized right and duty of the States in which they now live to protect their sovereignty and territorial integrity, should be resolved by peaceful means first and foremost via negotiations-- through adequate conflict-resolution mechanisms (either existing or to be established); preferably within the domestic jurisdiction and always, with effective participation by Indigenous peoples.”
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