Territorial recognition

Very few communities have obtained the title to the territories they ancestrally occupy. Ten years have passed since indigenous rights were recognised in the National Constitution, and yet a procedure to take the titling process forward has still not been established, nor a method for delimiting and demarcating the territories defined, far less effective legal means by which to safeguard their ancestral lands. Members of indigenous communities are intimidated, pressured and persecuted to renounce their claim to their lands on a daily basis. They are repeatedly evicted from their territories, or criminal proceedings initiated against them for the crime of usurping their own lands. In addition, a number of infrastructural developments are currently being implemented in different regions of the country, along with mining or logging operations, and these represent a danger to the territorial integrity, cultural identity and life of some indigenous communities.
 
Moreover, the forms of land ownership provided by law are not adapted to the special ways in which the communities relate to the land; they do not consider the criteria of traditional resource use or their specific worldview. The advance of colonizing fronts onto indigenous territories continues on the part of farmers, loggers, industrialists etc. and yet the government does not attempt to do anything about it.
 
This situation has meant that the overriding demand of Argentina's indigenous movement has been for the effective recognition of their territorial rights. They are demanding the urgent demarcation and measuring of all territories and the definition of other "lands appropriate and sufficient for human development". For the indigenous of Argentina, no other rights can be fully exercised until their territories are titled.

Participation and consultation

Despite the legal obligation enshrined in ILO Convention 169 to ensure indigenous consultation and participation, this does not take place in practice. Despite repeated protests and demands from indigenous peoples, civil servants fail to comply with this obligation and decide on the public policies to be implemented in isolation.
 
On 12 May 2005, an indigenous delegation attended the Congress of the Nation to debate a draft bill with a group of legislators that sought to prevent "enforcement of evictions" (against indigenous peoples) for four years, whilst at the same time ordering the National Institute for Indigenous Affairs (INAI) to "define indigenous lands in order to title them in favour of communities". Without entering into a debate on the possible intentions of the policies, the bill was due to be heard by the legislative assembly for its approval during this period, but this was not possible. The organising of a consultative meeting should have been normal practice in Argentina, which has ratified ILO Convention 169, but it takes more than good intentions to respect the opinions and authority of the indigenous themselves in issues of direct interest to them.
 
Despite the efforts made by the president of the Chamber of Deputies' Population and Human Resources Committee, the meeting was not what it should have been. Not because procedures appropriate to the cultural norms of the affected peoples were lacking but because the meeting did not have the due and legitimate participation of genuine leaders and representatives. This was due to an absence of financial resources to ensure this presence. For this reason, only indigenous people living in the state capital were able to attend, or those who happened to be passing through. The failure to set aside specific funds within INAI's national budget for due consultation with the indigenous peoples is indicative of Argentina's lack of respect for international law.

Autonomy and recognition of native authorities

A number of indigenous community registries exist within the country. This is where indigenous people have to go to request recognition as "legal entities", although they are often required to adopt organisational and representational forms more in line with the official system than with their traditions. The indigenous movement's organisations and leadership believe that the State must recognise and respect their own authorities and organisational forms, understanding the variations and differences between peoples. The Mapuche have long been demanding respect for their autonomy as a Native Nation/People and are calling for recognition of their traditional authorities. For the moment, it would seem that one way for all indigenous people living in Argentina to achieve this aim would be for the State to recognise the legal status of the indigenous peoples rather than merely the indigenous communities.

Deficiencies in local governments' indigenist policy
 
Indigenous culture - political merchandise in Formosa province: In 2005, the Formosa government, through the Ministry of Tourism, organised the 2nd Meeting of Native Peoples of America. A grand event that claimed to be demanding cultural plurality but which was denounced by the province's indigenous people as a scheme on the part of Governor Gildo Insfrán to cover up the numerous violations of their rights, some of which have been of national importance. Such was the case of the investigative journalism conducted by a free-to-air TV channel into the repressive practices of party activists on election day, when indigenous voters had their identity documents confiscated, and were barricaded in their communities, later taken by force to vote for the "right" candidates. In fact, this conference took place in an electoral year, two months after an international complaint had been presented by the Nam Qom community to the Inter-American Commission on Human Rights and one week after the trial of three of its members, accused of murdering a police officer, in a confused event while they were out on traditional hunting activities.

A legal absurdity - Law 7352 on a referendum in Salta province: A pathetic event took place in the context of the Lhaka Honhat organisation's land claim, when it found itself in a process of friendly resolution before the Inter-American Commission on Human Rights (IACHR). In April, the Salta government unilaterally decided to break off the friendly negotiation process on the basis of the false argument that Lhaka Honhat had made no comments with regard to the government's proposal for land distribution presented via the IACHR. The government therefore decided to send a proposal for a referendum to the provincial legislature so that the people of Rivadavia could say whether they wanted the indigenous ancestral lands (of state plots 55 and 14) to be handed over to their "current indigenous and non-indigenous occupants" or not. There were not even any second thoughts when various federal state bodies warned of the unconstitutionality of the referendum, on the basis that indigenous rights could not be submitted to a popular decision.
 
On 11 August 2005, Lhaka Honhat asked the Supreme Court of Justice to rule on the call for a referendum, and presented an appeal known as a "declaratory action" (acción declarativa de certeza). On 28 September, the Court issued its ruling stating that it was not competent to hear the issue and that it was for the petitioners to present their demand before the ordinary courts of Salta province. Only one of the seven members of the Court, along with the Attorney-General of the Nation (who had already issued his opinion on 24 August), stated that the issue raised was of the Court's original competence, as the arguments made by Lhaka Honhat directly and immediately called into question clauses of the National Constitution that needed essential clarification when judging the affected right. 
 
Although the minister did not venture an opinion on the unconstitutionality of the referendum, he at least recognised the Supreme Court's competence to rule on the issue. There is no doubt that indigenous rights cannot be subject to consultation, and that the procedure employed was in breach of ILO Convention 169. The formula used is illegal in that it offers the alternative option of voting not to provide lands. All that can be added in this regard is that, unfortunately, the majority of Court members did not warn that this failure to enforce the territorial rights of the indigenous, along with the government's actions in this regard, constituted a flagrant threat to their survival as peoples.