The United Nation’s Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, recently ended an eleven-day trip to Argentina where he met with government officials and indigenous peoples throughout the country. At the conclusion of his visit, on Wednesday, December 7th, Anaya gave a short speech in Buenos Aires where he summarized some of what he saw and offered the Argentinian government some recommendations on how to advance indigenous rights within the country. A translation of that speech appears below.
By way of background, the United Nation’s created the position of Special Rapporteur on the Rights of Indigenous Peoples in 2001 in order to:
- promote good practices to implement international standards concerning the rights of indigenous peoples;
- report on the human rights situation of indigenous peoples in specific countries;
- address specific violations of the rights of indigenous peoples; and
- contribute to thematic studies on topics related to promoting and protecting the rights of indigenous peoples.
Anaya is the second person to hold this position and was appointed in 2008. Although Anaya and his predecessor — Rodolfo Stavenhagen — have visited numerous countries over the years, but this was the first time that either individual has visited Argentina in this official of a capacity. In total, Anaya spent eleven days in the country and visited multiple regions and communities. In addition to his speech below, Anaya will release a more substantial report on his visit sometime next year.
Below, in italics, is a translation of Anaya’s speech given on December 7th in Buenos Aires:
“In my role as UN Special Rapporteur on the rights of indigenous peoples, I am concluding my official visit to Argentina which began this past November 27th. During my visit, I held a series of meetings with a diverse group of representatives from indigenous communities and indigenous peoples, and with officials from the national government in Buenos Aires as well as the provinces of Neuquén, Rio Negro Salta, Jujuy and Formosa. Additionally, I visited different indigenous communities in these provinces and held meetings with civil society representatives.
I would like to thank the Argentina Government for their cooperation during this visit. I would also like to thank the representatives of the indigenous peoples and organizations in Argentina who were essential in the collaboration, planning and realization of my trip.
During my visit I have endeavored to understand the points of view of indigenous peoples, national and provincial government representatives, and other interested parties about the achievements and challenges that exist with respect to the enjoyment of human rights by indigenous peoples in Argentina.
During the next few weeks I will be reviewing the information that I have obtained during my visit in order to prepare a report that will evaluate the human rights situation of indigenous peoples in Argentina and that will include a series of recommendations. This report will be public and will be presented to the UN Human Rights Council. My expectation is that the report will contribute to the search for solutions on the part of the Argentina Government and indigenous peoples to the various challenges that confront indigenous peoples in the country.
In anticipation of my report, I offer several preliminary observations now.
In all the places visited, I noted a consensus among interested parties with respect to the advances in the legal framework that have occurred in the country with respect to indigenous peoples’ rights. These advances include the important provisions on indigenous matters in Argentina’s 1994 Constitution, and Law 26.160 of 2006 that aims to stop the evictions of indigenous communities and to put in place a judicial program at the national level to contribute to the regularization of indigenous community property. Another significant advance is Argentina’s ratification of Convention 169 of the International Labor Organization on indigenous peoples and tribes.
However, I have observed that, in order to implement the rights recognized in these instruments, it is necessary for national and provincial institutions to give higher priority to issues related to the human rights of indigenous peoples. In this regard, I believe the government institutions need to be strengthened and trained to better respond to the diverse problems that confront indigenous peoples in the country.
In particular, I believe it is important that programs be undertaken to improve the capacity of judicial functionaries at the national and provincial levels with respect to national and international norms of indigenous peoples and their application in cases related to themes such as indigenous peoples’ rights to land and natural resources.
At the same time, both the national and provincial governments should better incorporate the norms set-forth in ILO Convention 169, the UN Declaration on the rights on indigenous peoples and other international instruments that are applicable to their public policy and programming. They should also redouble efforts to coordinate the actions that they undertake in benefit of indigenous peoples, including in relation to surveying lands and effectively recognizing the legal personality of indigenous peoples and communities.
In this regard, a central concern expressed by indigenous representatives during the course of my visit was the lack of legal certainty surrounding their rights over their traditional lands, and in particular the many problems and delays that they encounter in the process of land surveys. Of particular concern for indigenous peoples throughout the country are the number of displacements of members of indigenous peoples from territories that they claim based on their traditional or ancestral use.
The majority of these displacements have been a product of a judicial order that makes it difficult to effectively recognize community property, and that have been the cause for territorial disputes between indigenous peoples and private property owners or businesses. This situation is particularly troubling given that these displacements have been carried out in recent years despite the recognition of communal indigenous property in the nation’s Constitution, Law 26.160 and ILO Convention 169.
Another problem related to the legal uncertainty of indigenous peoples’ traditional lands is the existence or promotion of extractive industrial projects within or near the indigenous territories and communities. I have heard testimony from members of indigenous peoples about the effects on health and the environment created by extractive industries, and about the need for the Argentina state to pay more attention to remedying these effects.
A common factor present in the diverse cases that were brought to my attention has been the lack of effective consultation with affected indigenous peoples before beginning said projects, and the lack of participation in making decisions about these projects and the economic benefits they produce. I agree with what I have heard from indigenous representatives and some government representatives, that it is necessary to regulate a consultation process with indigenous peoples in relation to extractive industries and other issues that affect them.
Also with respect to the participation of indigenous peoples in making decisions that affect them, I am concerned at the information I received about the effects caused by the declaration of UNESCO World Heritage Sites in the areas where indigenous peoples live, for example in the Quebrada de Humahuaca. I have been informed that indigenous peoples that live within these sites were not involved in the process of the declaration of the sites, are not participating in the management of the sites and feel limited in their ability to maintain their traditional and subsistence activities within these sites.
At the same time, I have been informed about development initiatives proposed by those same indigenous peoples that promote their own management of natural resources and economic self-sufficiency in their communities. I believe the State should promote these initiatives and create conditions to strengthen indigenous peoples’ effective control over their own economic development.
To achieve this, it is also essential that indigenous peoples have access to adequate education, education that reaches their communities and that is adapted to their realities. In this regard, I believe that it is necessary to expand existing intercultural bilingual education programs with the participation of indigenous peoples with the goal of truly promoting indigenous languages and cultures. Additionally, the State and the provinces should give more attention to access to university education and the specific situation of indigenous women studying in urban areas.
I recognize that some of these concerns are being addressed by federal and provincial institutions. For example, I have been made aware of several important initiatives of the Instituto Nacional de Asuntos Indígenas (INAI) [National Institute on Indigenous Affairs] to advance the land survey and some social development programs in the provinces. I also recognize the program, under the Ley de Servicio de Comunicación Audiovisual [Audiovisual Communication Service Law], to improve indigenous peoples’ capacity to communicate in remote areas by establishing community radio stations.
These advances need to be strengthened, and for that to occur, the Government needs to give higher priority to indigenous issues, to develop new programs and public policies in this area, and to assure that these programs and policies are implemented in accordance with the relevant international standards.”