On Tuesday, September 13th, MIDEPLAN (the Ministry of Planning) decided to accept a request to invalidate Decree 124 on Indigenous consultation. This decision does not mean that Decree 124 is currently invalid, but rather that MIDEPLAN will have an administrative proceeding to consider repealing the Decree. Since its passage, Decree 124 has been widely criticized by Indigenous peoples and international law experts for not complying with ILO Convention 169 on Indigenous rights.
The decision to review Decree 124 came after Diego Portales University made an official request to do so on behalf of two Indigenous leaders – Marcial Colín (Mapuche) and Cecilia Flores (Aymara). The request stated that Decree 124 was in violation of international law as well as the Chilean constitution.
In accepting the petition, MIDEPLAN will eventually make a decision about the Decree, but before that occurs the Ministry has decided to give one month for all Indigenous peoples and interested parties to present their comments on the issue. Mapuche leader Colin Marcial emphasized the importance of this month of public debate and urged “all Indigenous organizations to give their opinion on repealing this law, which has limited the functionality of Convention 169.”
Despite the general consensus amongst Indigenous peoples that Decree 124 does not meet the requirements of Convention 169, there has been some controversy around MIDEPLAN’s announcement. After the decision to review was announced, several Indigenous organizations — including, most vocally, the Red Indígena Legislativa y de Políticas Públicas – criticized Diego Portales University for the manner in which they requested review.
The major criticism has been that Diego Portales Unviersity’s request also asks for a law to replace Decree 124, which according to the criticism, should not be necessary given that ILO Convention 169 should already be in full-effect. According to Francisco Vera, a Mapuche member of the Red Indígena, “They insist there should be a law, but we already have a law in place.” Vera went on to indicate that asking for a new law relating to Indigenous peoples is very dangerous given that the Chilean government’s history of producing laws for Indigenous peoples that are not very beneficial for them.
Despite the criticism from some Indigenous organizations, a number of other Indigenous organizations and communities have also come out and expressed their support for what the University did and have urged MIDEPLAN to repeal the Decree.