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CHILE
Decree limits prior consultation
Rocío Alorda*
7/17/2011
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Indigenous movement calls for repeal of decree that violates the right to consultation, and rejects the government proposal.

The application in Chile of the prior consultation mechanism established by the International Labor Organization’s Convention 169 concerning Indigenous and Tribal Peoples is limited and reduced.

The primary restriction on this right of indigenous communities is through the Supreme Decree 124, a regulation issued by former president Michelle Bachelet’s administration (2006-2010), the same day that Convention 169 went into force in September 2009.

The decree dictates that consultation is “the process through which concerned indigenous peoples, through the systems this regulation lays out, can express their views about how, when, and why certain legislative or administrative measures, originated in any of the state’s agencies, may affect them directly.”

“This decree goes against the essence of consultation, which is the effective participation of indigenous peoples in the adoption of legislative and administrative measures that concern them,” said Marcela Lincoqueo, president of the Lakutun group, referring to Article 6 of ILO Convention 169, which establishes consultation through appropriate mechanisms and representative institutions, not state-defined procedures. “The prior consultation provided for in Convention 169 is supplanted and misrepresented by Decree 124,” remarked Lincoqueo.

José Valeria Quilapan, professor at the Academy of Christian Humanism University and an expert in indigenous affairs, explains that there is a great lack of understanding in Chilean society and even in the indigenous communities about what prior consultation and participation of the native population are, “when this should be a national debate.”

“In the Chilean state’s relationship with indigenous peoples there is an institutional framework that wants to keep indigenous peoples controlled, when the point is their self-determination,” he explains.

Rejection of major government consultation
In September 2009, James Anaya, UN Special Rapporteur on the Rights of Indigenous Peoples, highlighted in the Recommendations to Chile report the usefulness of conducting a “consultation on the consultation,” emphasizing the need to “consider the essential requirements of the consultation set out in the special regulations”.

Thus, the government announced in early 2011 the implementation of the “Consultation on Indigenous Institutionality”, known as the “great consultation”, which began in May and will finish in September; it addresses the proposed constitutional reform that recognizes indigenous peoples, the content of bills to create the National Indigenous Development Agency and the Council of Indigenous Peoples. Only in the latter part of this consultation is the process of consultation and participation brought up.

“In the great consultation, the government puts last the issue of how people want to be consulted and the methodologies used. How is it possible that this is at the end of what we are going to comment on institutional recognition and institutionality, if we as a people have not yet discussed what mechanisms we find appropriate for us to be consulted?” says Sandra Huentemilla, president of the Association of Mapuche Professionals.

The strategy for the government’s consultation indicates that during the process, a high level of participation from indigenous organizations was taken into account, with the means of communication and resources to carry out prior meetings with communities. However, indigenous representatives surveyed say their communities have not been consulted.

For Huentemilla, this consultation is defining the native population’s future as political and legal subjects, which is why the way in which the consultation is done is key — so it can be participatory and in good faith. Huentemilla rejects the proposal on the grounds that it was developed by the government alone, and the indigenous communities were absent from its design.

At a meeting last May in Santiago, more than a hundred representatives of native peoples from around the country gathered to discuss and decide on “consultation, constitutional recognition, institutionality and governance,” according to the principles set out in ILO Convention 169.

Representatives of indigenous communities that participated in the meeting indicated their rejection of Supreme Decree 124 and made a call to stop the consultation process that is being carried out by President Sebastián Piñera’s government, demanding a consultation procedure that includes the full participation of indigenous peoples as established by international standards.

This rejection is also supported by indigenous communities in the Southern part of the country. So explains werkén (spokesperson) of the mapuche huilliche Pepiukelen community, Francisco Vera Millaquén, who said that the government is leading a process that goes against ILO Convention 169.

“The UN rapporteur was clear in saying that there should be a consultation to establish the mechanism by which the consultation would happen, that is to say, first defining the procedure and the matters to address. That should be the first step, and after it should be decided what will happen with the constitutional recognition of native populations, and finally addressing indigenous policies and institutionality,” said Vera Millaquén.

Organizations that monitor the situation of indigenous peoples in Chile have also expressed their apprehensions toward the government proposal, questioning the process undertaken. This is what the Observatorio Ciudadado said in a public statement, indicating that “It is not appropriate that the government decided to consult on a mechanism that formalizes and develops those procedures, and at the same time, is already consulting on important issues regarding the situation of indigenous communities.”

These consultation mechanisms should have quality standards to ensure the effective participation of indigenous communities, says Juan Valeria Quilapán, academic and expert on indigenous issues.

“Since 2009, all of the laws and public policies made in Chile that affect indigenous people must be consulted. Therefore, the first thing to consult is the methodology, and that decision must have certain requirements for quality that are transparent, informed, culturally relevant, massive, with resources, and that cannot be consulted in an arbitrary or clientelistic way because otherwise the information collected will be distorted,” he says.

Thus, the great government consultation is not being done in line with the mechanisms established by ILO Convention 169, which provides that such consultations be made in advance and seeking to establish a consensus.

New reports
Last year the government gave the ILO its first report on the implementation of Convention 169, which must be drafted again due to gaps in its content, and should be submitted in September.

Huentemilla explained that the government report was not supported by the indigenous population since they did not know the contents of the document.

“That report was returned and must be submitted again, and that’s why the government is conducting this consultation, but the indigenous peoples do not know if the State is meeting the goals set out in Convention 169,” she says.
According to indigenous leaders, the government’s lack of progress on indigenous peoples’ affairs is the reason why the great consultation was touted this year.

In February, the ILO’s Committee of Experts on the Application of Conventions and Recommendations sent to the government a “direct request”, a mechanism used to communicate concerns to authorities, and made public its first comments on the implementation of Convention 169 in Chile.

In the “direct request,” the ILO Committee asked the government to respond about the implementation of mechanisms for indigenous peoples’ consultation and participation. Among the observations is mentioned that the Decree 124 did not meet international standards and that “it limits consultation, aims at the arbitrariness of the administration to determine when it applies it and in what cases it is appropriate to consult.” Thus, the Committee of Experts requested the government inform it “about the process of consulting the indigenous peoples regarding a new regulation, which must incorporate its observations.”

As explained Guillermo Miranda, director of the ILO’s Subregional Office for the South Cone of Latin America, based in Santiago, “Chile’s government, according to established procedures, must respond and give further information about this request as part of its next report, to be submitted to the ILO Committee of Experts about the implementation of this Convention. At the request of the Commission of Experts, the Government shall give its next report this year so that the Commission can review it at its next meeting to be held in November and December this year.”

While waiting for the government to respond to those reports, indigenous peoples’ organizations must submit new reports including the weaknesses and limitations to prior consultation in Decree 124.

As stated by Juan Antonio Correa Calfín, who helped coordinate the meeting between indigenous organizations, from now on “come a series of efforts to repeal Decree 124 with actions in Parliament, the Constitutional Court — probably — and the government. Paralyzing the government’s consultation is one of the first steps. We must continue working with the ILO, but above all we have to work as a people and discuss how we want such consultations to be carried out.”

“We are demanding the repeal of Decree 124. We are asking the government to be consistent because the current Minister of Development and Planning said decree is not going to be used, and even Concertación [ruling party when the decree was issued] assumed that this measure was a mistake. So we’re telling them to repeal it. That would be a gesture to start a serious dialogue with the Chilean government,” declared Vera Millaquén.
—Latinamerica Press.


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Little is known about the consultation that the government is conducting in indigenous communities (Photo: Paulina Veloso)
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