Indigenous Law Bulletin
by Alwyn Jose
Chile has historically denied its ethnic and cultural diversity. For many years, the country's ruling elite promoted the idea that ours was a racially homogenous society composed of descendants of Europeans. Consistent with these ideas, the National Constitution still only acknowledges the existence of one people, the Chilean people. Until recently, the law did not recognise Indigenous peoples, their cultures, or their languages.
This may help to explain why many were surprised when the 1992 population census1 revealed that almost one million Chileans out of a total population of thirteen million identified themselves as belonging to one of the three main Indigenous cultures: Aymara, Rapa Nui and Mapuche. These census statistics have played a central role in demolishing some long-held myths about the ethnic composition of Chilean society and they have also have helped in the recognition of at least some Indigenous rights in recent years.
When Europeans first arrived in the area in the mid-sixteenth century the territory which is now Chile was inhabited from its northern extremity to Tierra del Fuego by an estimated one million Indigenous people who had their own cultures, laws and institutions. The arrival of Europeans altered their lives forever as the Spanish conquistadores (conquerors) started taking control of Indigenous territories and imposing their laws and institutions. Indigenous people and their lands were divided up amongst the Spanish soldiers through a social institution called encomienda, which did not differ substantially from slavery Spanish ambitions were frustrated, nevertheless, by the resistance of the Mapuche people in southern Chile which lasted for almost three centuries. The Mapuche were able to expel the conquistadores from their traditional territories, where they continued to live independently after negotiating a series of parlamentos (pacts) with the newcomers.2
The advent of the Chilean republican 1810 brought no substantial changes to the Mapuche people's situation, and they continued to live independently in their ancestral lands. There was early acknowledgment in 1819 of the free and equal status of the Indigenous population. However, in 1881, the Chilean army occupied Mapuche territory in southern Chile in a violent campaign euphemistically called the 'Pacification of Araucania'. The Mapuche were dispossessed and resettled on lands where the state recognised communal title held by Mapuche chiefs and family members. The 3,000 reducciones (allotments) created for this purpose represented a mere 6.39 % of Mapuche ancestral territory.3 Parallel to this occupation, the Chilean state in 1879 annexed part of what were then the Peruvian and Bolivian Andean highlands in the north, where the Aymara lived, and in 1888, Easter Island, the homeland of the Rapa Nui people. During the same period, Chilean authorities ceded large tracts of land to non-Indigenous people in Patagonia and Tierra del Fuego, without reserving any lands for local peoples to enable their material and cultural survival.4
From then until quite recently, all laws and policies applied by the state to Indigenous peoples, have, apart from rare exceptions, promoted their assimilation into national society and showed little respect for their culture and identity. Assimilationist laws and policies reached their most extreme form under the Pinochet dictatorship from 1973 until 1989. During this period, Indigenous organisations were persecuted and legislation was enacted which posed an explicit threat to Indigenous lands and cultures, as well as to their existence as peoples.5
Under Pinochet, Indigenous peoples organised to defend themselves against the policies imposed by the military regime. In the late 1980s, Indigenous organisations began negotiating with the political parties that assumed power in 1990, to gain legal and constitutional recognition as distinct peoples, as well as the protection of land, resource and participatory rights.6 These negotiations produced a series of proposals on Indigenous rights which were sent for approval to Congress:
Two years later, the Congress approved La Ley sabre protection, fomento y desarrollo de lot Indigenas, the `Law on protection, promotion and development of Indigenous peoples'7 However, to date, neither the constitutional amendment nor the ratification of ILO Convention 169 have been approved by Congress.8
Despite its limitations,9 the 1993 law:
Through the active involvement of Indigenous representatives, CONADI at first made significant progress.10 The legislation ended subdivision of Mapuche communal lands and approximately 75,000 hectares of land were transferred to Mapuche individuals and communities between 1994 and 1997 through the land fund.11 The development fund has made possible a number of self-managed economic and cultural initiatives by Indigenous individuals and organisations, both in rural and urban areas. These have helped Indigenous people to improve their quality of life in a way consistent with their culture.12
However, these positive outcomes have recently been overshadowed by the impact on Indigenous peoples of the current policy under President Eduardo Frei's Government of promoting the globalisation of the Chilean economy by opening Chile up to international markets.13 Under this policy, several development initiatives affecting Indigenous territories have been implemented. An important aspect of these projects has been the appropriation, usually without compensation of Indigenous lands, waters, forests and other natural resources which are essential for Indigenous cultural and material subsistence.14
Mapuche lands and resource rights are currently threatened by several Government-supported developments, including the Bio-Bio hydroelectric project which affects the Pehuenche people,ts the expansion of the forest industry into Mapuche territory,ts and the construction of highways in the same territory. 17
Most of these developments are being implemented without adequate consultation with affected Indigenous communities. The Mapuche see these initiatives as a second occupation of their territory, and have mounted various forms of resistance over the last few years including peaceful demonstrations, land occupations (tomas) and road blockades. Nevertheless, violent confrontations between Mapuche protesters and forest industry guards or police forces have become frequent in the Araucania region over the last two years.
As a result of this situation, Indigenous peoples' relationship with the Government has seriously deteriorated in recent years. Although their elected representatives are still part of the CONADI National Council, the Indigenous movement has clearly distanced itself from the Government. The era of negotiations which started in the late 1980's with the Nueva Imperial Agreement has been replaced by an atmosphere of confrontation which seems closer to the period under the military dictatorship.
It is unlikely that confrontation will cease unless Indigenous claims are heard. Indigenous peoples in Chile are still seeking constitutional recognition of their status as distinct peoples, the ratification of ILO Convention 169 and the protection of their resource rights which were not recognised in the 1993 legislation. Unless Indigenous resource rights are protected legislatively from the lend of developments now taking place on Indigenous land, CONADI's efforts to expand the Indigenous land base through the land fund will be useless.
A further demand which has been made in the last few years is for Indigenous peoples' right to autonomy in their own internal affairs. Mapuche organisations have been particularly vocal on this issue, and propose establishing a system of Mapuche self-government in the Araucania region. This demand will be difficult to achieve, because powerful sectors of Chilean society view it as separatist. Nevertheless, self-government is a fundamental step towards the recognition of the Indigenous right to self-determination, and a right which has recently been acknowledged in international fora such as the United Nations (in the Draft Declaration on the Rights of Indigenous Peoples 1993)18 and the Organization of American States (in the Inter-American Draft Declaration on the Rights of Indigenous Peoples 1995).19
Jose Aylwin is a law student at the Institute de Estudios Indigenas at the Universidad de la Frontera in Temuco, Chile, and is currently completing graduate studies in the Faculty of Law at the University of British Columbia in Canada.
|1.||Instimm National de Estadisticas, Censo de Poblacion y Vivienda, Chile 1992. If those under the age of 14 are also included, the figure for the Indigenous population increases to 1.3 million, or 10 per cent of the total population of Chile.|
|2.||These have been recognised as treaties by UN Special Rapporteur Miguel A Martinez in his Study on Treaties (UN Doc. E/CN.4/Sub.2/AC.4/I998/CRP1) 23. The parlamentos established the Bio Bio river in the south of Chile as a border between Spanish and Mapuche peoples, thus giving recognition to Mapuche territory and sovereignty.|
|3.||Hector Gonzalez, Propiedad Comunitaria o Individual. Los Leyes Irdigenas y el Pueblo Mapuche (1986) 11 No 3, 7.|
|4.||The four Indigenous peoples (Aonikenk, Selknam, Yamana and Kawesgar) living in this area at the time of its annexation by Chile and Argentina have today almost died out.|
|5.||Decree No 2568 of 1979. This law encouraged the division of Mapuche communal lands and their conversion into privately owned lands. Under the terms of this law, the subdivided communal lands were no longer considered Indigenous lands, nor were their owners recognised, as Indigenous.|
|6.||The Nueva Imperial Agreement was signed by Mapuche, Aymara and Rapa Nui organisations with representatives of the Coalition of Democratic Parties in 1989.|
|7.||Decree No 19253 of 1993.|
|8.||Congress continues to be not entirely democratic in composition due to the provisions of the 1980 Constitution established under Pinochet.|
|9.||This law does nor adequately protect Indigenous rights to natural resources, nor does it contain provisions acknowledging the Indigenous right to self-government.|
|10.||During its first years of existence, Indigenous participation in CONADI was significant, and there was an Indigenous National Director, Indigenous professionals in the administration of agency programmes, and Indigenous representatives on CONADI's National Council.|
|11.||CONADI Annual Reports 1994-1997. 12. Above.|
|12.||During the last few years, the Chilean Government has signed free trade agreements with Mexico and Canada, has become a member of MERCOSUR, a free market association which includes Argentina, Uruguay and Brazil, and has joined APEC (Asia Pacific Economic Conference).|
|13.||For an Indigenous Chilean response to neo-liberal economic policies, see the Tenu co-Wallmapuche Declaration on the North American Free Trade Agreement, Indigenous Peoples and their Rights made on 2 December, 1994 Temuco, Chile. Available at <www.abyayala.nativeiveb.org/cultures/chile/.|
|14.||Project launched by the private company National Energy Enterprise (ENDESA) which involves the construction of six hydroelectric dams in the upper basin of the Bio-Bio river in an area which is the ancestral homeland of 5,000 Pehuenche, a Mapuche sub-group. The Ralco dam currently under construction will necessitate the relocation of 500 Pehuenche people.|
|15.||In recent years, this industry has acquired 1.5 million hectares of land in the traditional territory of the Mapuche people. Many of these lands are claimed by Mapuche communities. Most of these lands have been planted with exotic species, such as pine and eucalyptus;; producing serious environmental problems.|
|16.||The Government is engaged in plans to construct two highways which cross through the heart of Mapuche territory. The new roads will affect a significant number of Mapuche communities.|
|17.||Article 3 19. Article 15|