The Indigenous World 2023: Chile
Despite steadily increasing since the 1990s, the size of Chile’s Indigenous population has shown no major changes since the 2017 census. A total of 2,185,792 people self-identify as Indigenous, equivalent to 12.8% of the country's total population (17,076,076). The Mapuche are the most numerous (almost 1,800,000 people), followed by the Aymara (156,000 people) and the Diaguita (88,000 people).[1] A sustained increase in the urban Indigenous population as compared to the rural population is notable, with 87.8% of the Indigenous population now living in urban areas compared to 12.2% in rural ones.[2]
Law 19,253 of 1993, or the “Indigenous Law”, has not been amended despite its reform being urgently needed to bring it into line with current international standards on the rights of Indigenous Peoples, such as ILO Convention 169, ratified by Chile in 2008. Chile has also adopted the 2007 United Nations Declaration on the Rights of Indigenous Peoples and the 2016 American Declaration on the Rights of Indigenous Peoples.
Since the referendum of September 2022 in which the electorate rejected the proposed new Constitution, the political parties represented in the National Congress have been seeking to promote a new constitutional process through the so-called “Agreement for Chile”.
Indigenous Peoples and biodiversity conservation
The close and profound relationship that Indigenous Peoples maintain with nature, together with the contributions they make to biodiversity conservation and the importance of their traditional ecological knowledge and associated rights, have been increasingly recognized and valued in the international context, and this was reinforced by the new Global Biodiversity Framework approved in the context of COP 15 in December 2022.[3]
However, while Chile is being increasingly recognized internationally for its actions and efforts to conserve biodiversity and address the climate crisis, there has been little progress in recognizing and supporting the contributions made by Indigenous Peoples. This can be seen, for example, in the absence of a public policy to this effect; in the lack of focal points, managers or a unit on Indigenous affairs within the Ministry of the Environment;[4] and in the scarce funding available to support their conservation initiatives.[5]
Conservation in Chile thus far continues to be synonymous with protected areas cut off from human intervention and administered by the State through the National Forestry Corporation (CONAF). Alongside this, private conservation initiatives have been emerging, several of which overlap with lands claimed by Indigenous Peoples,[6] and yet the State has failed to act to regulate these situations. Although there are a large number of conservation initiatives led by Indigenous Peoples and communities that are seeking to strengthen the self-determination and protection of their territories, these initiatives generally receive no publicity and have little technical or financial support to carry them forward.[7]
Nevertheless, some of the current government's initiatives might be able to provide solutions. For example, the creation of a Commission for Peace and Understanding was announced in November 2022. This will begin operating in March 2023 with the aim of mapping Mapuche land claims and establishing concrete mechanisms for their restitution.[8] Although this commission, like the government's general policy, addresses only lands and not territories as stipulated in international standards, it is hoped that this registry will include the lands and territories claimed in protected areas and that it will be possible to propose solutions that will allow for the protection and conservation of biodiversity at the same time.
In addition, the bill creating the Biodiversity Service and the National System of Protected Areas (SBAP Law),[9] which has been passing through Congress for more than eight years and is now reaching its final stage, offers an opportunity to address the relationship between Indigenous Peoples and conservation more broadly speaking, both the overlap with protected areas and recognition and support for Indigenous conservation initiatives, both terrestrial and marine. And yet the bill still has some way to go to meet international standards and the challenges presented by the new Global Biodiversity Framework and its 2030 targets.
Overlapping of protected areas with Indigenous territories
Chile currently has 106 State Protected Wildlife Areas (ASPE), covering 22% of its land area and 42% of its maritime waters. The phenomenon of overlap between ASPEs and Indigenous lands has been confirmed by the National Forestry Corporation (CONAF) itself, which in 2000 estimated that, of the 94 units of the National System of State Wildlife Protected Areas (SNASPE) at that time, covering a total of 14.5 million hectares, 18 were in some way related to Indigenous Peoples. A more recent study of the relationship between protected areas and Indigenous Peoples[10] shows that the phenomenon of overlap is present right across the country. This study identified a total of 25 SNASPE protected areas (out of a total of 101 units in 2017) that were overlapping with Indigenous communities, covering a total of 10.5 million hectares or some 70% of the SNASPE land area.
Even though this phenomenon is present throughout the country – both in land and marine areas – the State has no public policy to address the issue. In its absence, situations have been addressed in an isolated manner and in response to the demands of the peoples and communities involved, for example, Los Flamencos National Reserve[11] and Rapa Nui National Park.[12] In the case of the Mapuche people, there has been a particular upsurge in their initiatives and governance project. From the point of view of safeguarding and protecting the territories, this requires a greater commitment from the State with regard to decision-making in the ASPEs, promoting a more binding participation on the part of communities that make customary and biocultural use of the territory and generating spaces for dialogue and meeting in order to promote inclusive conservation projects, with effective participation of the communities in decision-making at both planning and territorial management levels. This is evident, for example, in the historic claims to Indigenous lands and territories in protected areas such as the Villarrica National Park, the Malleco Forest Reserve and the Puyehue National Park but, to date, no agreed solutions have been found. In the case of the Kawésqar and Yagán canoe peoples of Patagonia, overlaps can be found with various ASPEs throughout their territory.[13] Despite some efforts, they still do not have adequate governance or restitution arrangements in place.
In this context, claiming Indigenous lands and territories in ASPEs has been consolidated as a fundamental pillar of recognising the territorial rights of Indigenous Peoples in Chile. The pressure of the extractivist model, added to the context of the water and climate crisis within the territories, has led the communities to question the logic of Western conservation. This logic is limited to protecting biodiversity and spaces of high eco-systemic importance, devaluing the territories that lie outside these colonially-viewed boundaries and excluding Indigenous Peoples’ from participating in the decision-making processes for spaces they have historically guarded and protected.
In some regions and territories, CONAF is now showing signs that it might be seeking mechanisms by which to ensure the good governance of those protected areas that overlap with Indigenous territories. This has been motivated by the fact that the Expert Assessment Group for the Green List (EAGL Chile) was established in Chile in June 2022 with the aim of applying the standard of the International Union for Conservation of Nature’s (IUCN) Green List of Protected and Conserved Areas in the country.[14] This tool certifies not only the good management of protected areas but also their governance and includes indicators on Indigenous rights.
Women defending and protecting coastal areas
The Law on Marine Coastal Spaces of Native Peoples (ECMPO), also known as the Lafkenche Law, is a regulation promoted by the Mapuche-Lafkenche communities which seeks to recognize and protect their territorial rights to the coastline and the sea. Since its entry into force in 2008, it has become established as a mechanism by which to hand over the management of a delimited marine space to a community or association of communities that have exercised customary use of that space with the aim of preserving its uses, ensuring the conservation of the natural assets included therein and promoting the welfare of the communities.
Since then, this law has been increasingly used by various Indigenous Peoples to defend their territorial rights and protect coastal and marine areas, which are increasingly being threatened by exogenous development models, extractivism and pollution. There are currently more than 100 ECMPO applications across seven regions of the country, covering an area of more than 30,000 km2. Nevertheless, with long processing times that exceed the legal deadlines, only 13% of these applications have actually completed the process. Political and administrative obstacles appeared as soon as the scope and impact of this law on the reorganization and governance of Chile's marine and coastal areas became evident.
Indigenous women have played a fundamental role in this scenario, both in the drafting of the law and in the processes for requesting and processing these spaces. It is also likely that they are the ones who undertake most of the customary uses noted and they play a key role in the transmission of knowledge on the sea and the environment: as gatherers, educators, artisans, gardeners, caretakers and spiritual guides and, increasingly, also as leaders, fisherwomen, divers and boat owners. Many of them perform several of these activities alongside their tasks of childcare, family, home and community care. Even so, their contributions are scarcely recognized or visible, and their activities and roles are seldom remunerated.
Faced with these shortcomings and threats, some Indigenous women have expressed an intention to join together and reflect on and discuss possible actions, proposals and recommendations for strengthening the ECMPO and the defence of the sea from their perspective. For example, the Network of Native Women for the Defence of the Sea [Red de Mujeres Originarias por la Defensa del Mar] has been building alliances between women of different ages and territories who live in coastal areas and fight to defend the sea in order to generate an exchange of experience across their diverse knowledge and strengthen their proposals and advocacy with other actors and decision-makers linked to women’s rights and the defence of the sea.[15]
The Kawésqar people are likewise seeking to protect the sea and their living territories, and they have initiated the “No more salmon farms” campaign to stop the expansion of these in the Kawéqar National Reserve.[16] Two of Nova Austral's nine cultivation centres were going to be located inside the Kawésqar National Reserve, which is incompatible with the reserve's protection objectives. Furthermore, their initial evaluations were defective, which meant that impacts on the marine environment, landscape and tourism could not be ruled out, in addition to which they also failed to consider the territory as ancestral and of relevance to the Kawésqar people’s way of life.[17] As a result, in December 2022, the Third Environmental Court of Valdivia annulled the Environmental Assessment Decisions (RCA) issued for the two salmon farming centres noted above. Leticia Caro, representative of the Nomads of the Sea Family Groups [Grupos Familiares Nómades del Mar], points out:
The ruling of the Environmental Court seeks to ascertain and demand that the processes are complied with in accordance with the law; the invalidation of these permits does nothing more than demonstrate that what we say is true, that our territory is not compatible and will not be compatible with the salmon farming industry and that our ancestors today see us from the memories of the territory.[18]
Indigenous Peoples in the constitutional process
As noted in IWGIA's The Indigenous World 2022,[19] Indigenous Peoples played a leading role in the process of drafting a new constitution for Chile that began in 2019 following the social uprising. Their participation was based on the inclusion of 17 Indigenous reserved seats in the Constitutional Convention (CC): seven Mapuche, two Aymara, and one for each of the other peoples recognized in the law, out of a total of 155 elected Convention members.
The proposed constitutional text presented by the Convention last July, which included a consultation process, included nearly 50 provisions (out of a total of 380) referring to recognition of the collective and individual rights of these peoples, such as recognition of their pre-existence; their right to self-determination and autonomy or self-government; to their own institutions, authorities and justice systems; to participation; to consultation and Free, Prior and Informed Consent (FPIC); to cultural diversity and to their own culture, identity and world vision, heritage and Indigenous language; and to equality and non-discrimination; and referring to the plurinational and intercultural nature of the State.[20] All of these rights are consistent with international law and current trends in Latin American constitutionalism.
Such provisions triggered strong criticism from conservative sectors: their media campaign aimed at rejecting the constitutional text in the September 2022 referendum focused on its indigenist nature and on “the fragmentation of the country” given the proposal to declare the State of Chile as plurinational and intercultural. Against this backdrop, the constitutional proposal coming from the Convention was rejected by 62% of voters in the referendum.
Although the media campaign with its false news, together with the economic situation of the country, and the situation of growing violence around the conflict in Araucanía – with State violence expressed through a prolonged state of emergency and reactive violence on the part of Mapuche organizations – goes some way to explain this rejection, a critical analysis of what happened is needed. In the case of Indigenous Peoples, the detailed inclusion of norms referring to their rights may not have been the right strategy to obtain popular approval. This took precedence over emphasizing the incorporation into the Constitution of the rights set out in current international treaties ratified by Chile: political, territorial and cultural rights, including autonomy and Indigenous justice as contained in ILO Convention 169.[21]
In December 2022, the political parties represented in the National Congress signed the so-called Agreement for Chile, which approves a continuation of the constitutional process. The Agreement establishes “constitutional bases”, which include the nature of the Republic of Chile and the unitary and decentralized nature of the State, property rights and the rights of Indigenous Peoples understood as “(...) part of the Chilean nation, which is one and indivisible”, among other things. In addition, a Constitutional Council is to be established, composed of 50 people elected by popular vote (with gender parity and supra-numerary Indigenous seats) who will be responsible for drafting the constitutional proposal; an Expert Commission of 24 experts elected by the National Congress will be in charge of producing a preliminary draft of the Constitution; and a Technical Committee on Admissibility, composed of 14 jurists elected by the Senate, will be able to declare the inadmissibility of norms challenged by one-fifth of the Constitutional Council.
This Agreement has serious limitations in both its form and substance from a human rights perspective. In terms of form, the right to direct participation in public affairs, as recognized by international treaties ratified by Chile, is limited. Basically, the peoples’ right to self-determination as recognized in these treaties, a right to which the Indigenous Peoples are entitled on the basis of the United Nations and American Declarations on the Rights of Indigenous Peoples, is being curtailed.
At the time of writing this section of The Indigenous World 2023, the reform bill approved by Congress requires 1.5% of the total votes obtained in the voting for councillors to elect one Indigenous seat on the Constitutional Council; 3.5% of the same total for the election of two seats; and, for additional seats, a further 2% to the 3.5% referred to above. The anticipated formula thus prevents any possibility of Indigenous participation proportional to their demographics. Nor does it allow for representation of all Indigenous Peoples on this constitutional body as was the case with the Constitutional Convention.[22] This has generated frustration and scepticism among Chile's Indigenous Peoples, who are considering their potential participation in this second stage of the constitutional process.
Mining and Indigenous Peoples of the north
In March 2022, following a sanction procedure, the Environmental Superintendency (SMA) fined the company Minera Escondida Limitada (operated by BHP Billiton) nearly USD 6 million for causing damage to the underground water resources that feed the delicate high Andean ecosystem of the Vegas de Tilopozo, in the Salar de Atacama (Antofagasta Region), an area utilized by the Lickanantay communities for traditional uses.
Following this, given the impacts identified on their lands, territories and common assets, the Atacameño Indigenous Community of Peine filed a lawsuit for environmental damage against the mining company through the Environmental Court of Antofagasta (Roll No. D-12-2022).[23] This court granted the community the status of main plaintiff, unprecedented in Chilean environmental law since legislation stipulates that the holder of such action should be the State.
Subsequently, the State Defence Council (CDE) also sued the same company but in addition extended the lawsuit to the copper mining company Compañía Minera Zaldívar (Antofagasta Minerals) and the lithium company Albemarle, given that they had participated in the extraction of considerable amounts of water from wells near the damaged area. This lawsuit furthermore considered damages in other sectors adjacent to the Salar de Atacama. The Court opted to merge the cases as there were two main plaintiffs.
In this case, which is currently underway, the plaintiffs allege, among other things, damage to the vegas and azonal vegetation systems, unique integral ecosystems that include particular species such as the heleobia atacamensis.[24] This microorganism is an endemic species of high scientific value and requires special protection despite the decreed conservation status, as its category is critically endangered.[25]
As reported in The Indigenous World 2022,[26] before leaving office, then President Piñera awarded two tenders for the exploration and exploitation of lithium in the country’s northern salt flats without identifying a specific sector. Several Indigenous communities then filed constitutional actions for protection in order to have these annulled, alleging a lack of prior Indigenous consultation and the violation of other rights contained in national legislation and in ILO Convention 169.
The Supreme Court upheld the appeals filed and annulled the bids previously granted on the grounds that the geographic location where the projects were to be developed had not been specified, and therefore the communities that might be affected could not be identified. In terms of consultation, the Court referred to the norms of ILO Convention 169, highlighting the need to initiate such a process prior to any prospecting or exploitation of subsoil resources, relocation or alienation of land.[27]
For its part, the government of Gabriel Boric has reiterated the need to create a national lithium company, and this has generated some discussion among the Indigenous Peoples and communities as they are not being taken into account in this regard. A similar situation occurred with the discussion of the National Mining Policy 2050, which took place in 2022,[28] and which envisages promoting mining in the short, medium and long-term as an engine for sustainable development in Chile, presenting copper and lithium as essential minerals for the energy transition and to combat climate change. However, the lack of a human rights or Indigenous Peoples’ perspective in such an important State policy, as well as the lack of any effective mechanisms for participation in its production, is cause for concern. It is thought this measure may be reviewed and modified by the current administration.
Lorena Arce, José Aylwin, Marcel Didier, Simón Crisóstomo and Karina Vargas are members of the Observatorio Ciudadano (www.observatorio.cl).
This article is part of the 37th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of an Indigenous person in Tanzania. This photo was taken by Geneviève Rose, and is the cover of the Indigenous World 2023 where this article is featured. Find the Indigenous World 2023 in full here.
Notes and references
[1] National Institute of Statistics. Summary of results. Census 2017. 2018. Available at https://www.censo2017.cl/descargas/home/sintesis-de-resultados-censo2017.pdf
[2] Ibid. Cit.
[3] This has been reflected in the new Kunming-Montreal Global Biodiversity Framework. Available at https://www.cbd.int/conferences/2021-2022/cop-15/documents (Decision 15/4).
[4] Although each government appoints a focal point for Article 8j (on traditional knowledge) of the Convention on Biological Diversity, they are not representatives of Indigenous Peoples and have not undertaken action in this area.
[5] Although the Environmental Protection Fund (FPA) has a specific line of support, the amounts and lines of action to be financed are very limited. See https://www.fondos.gob.cl/ficha/mma/FPA2023-Proyecto-Sustentables-Pueblos-Indigenas
[6] For example, the Tantauco Park, owned by former President Sebastián Piñera, which overlaps with Realengo titles claimed to this day by Indigenous communities.
[7] Arce, L., Guerra, F. and Aylwin, J. eds. Cuestionando los enfoques clásicos de la conservación en Chile: el aporte de los pueblos indígenas y las comunidades locales a la protección de la biodiversidad. [Questioning classical approaches to conservation in Chile: the contribution of Indigenous Peoples and local communities to biodiversity protection]. Observatorio Ciudadano, Consorcio TICCA, Chile, 2016. Available at https://observatorio.cl/cuestionando-los-enfoques-clasicos-de-la-conservacion-en-chile-el-aporte-de-los-pueblos-indigenas-y-las-comunidades-locales-a-la-proteccion-de-la-biodiversidad/
[8] See https://www.ex-ante.cl/lo-que-hay-que-saber-de-la-comision-por-la-paz-y-el-entendimiento-el-plan-de-boric-para-la-restitucion-de-tierras-mapuche/
[9] In June 2014, the government of Michelle Bachelet sent a bill to the Senate creating the Biodiversity and Protected Areas Service (SBAP) and the National System of Protected Areas (SNAP) (Bulletin No. 9,404-12). The bill of law was submitted to Congress without any prior consultation process with the Indigenous Peoples. As a result of Indigenous challenges, the government decided to launch a consultation process on the project in early 2016.
[10] Molina, R. “Control territorial indígena y gestión turística de Áreas Silvestres Protegidas: experiencia Atacameña y Rapa Nui, Chile” [Indigenous territorial control and tourism management of Protected Wildlife Areas: Atacameño and Rapa Nui experience, Chile] Polígonos, Revista de Geografía Np. 30; 281-303, 2018.
[11] Created in 1990 on territory ancestrally owned by the Atacameño or Lickanantai people, which has led to the signing of partnership agreements for management of some of these units by the Indigenous communities.
[12] Created in 1966 on Easter Island, in the ancestral territory of the Rapa Nui people and, after years of conflict, the Chilean State has handed over the administration of this park to the Rapa Nui through a 50-year free concession. See https://www.bcn.cl/leychile/Navegar?idNorma=1115907
[13] Aylwin, J., Arce, L., et al. “Conservación y pueblos indígenas en la Patagonia chilena” [“Conservation and Indigenous Peoples in Chilean Patagonia”]. In Castilla, J. C., Armesto, J. J., and Martínez-Harms, M. J. (Eds.). Conservación en la Patagonia chilena: evaluación del conocimiento, oportunidades y desafíos. [Conservation in Chilean Patagonia: knowledge assessment, opportunities and challenges]. Santiago, Chile: Ediciones Universidad Católica, 2021.
[14] See https://www.iucn.org/es/noticias/202207/la-conformacion-oficial-del-grupo-eagl-de-chile-esta-en-proceso
[15] Lorena Arce, Karina Vargas and Yohana Coñuecos. Encuentro y articulación de mujeres por la defensa del mar en el sur de Chile [Meeting and coordination of women for the defence of the sea in southern Chile]. ICCA Consortium, 14 June 2022. https://www.iccaconsortium.org/index.php/es/2022/06/14/encuentro-y-articulacion-de-mujeres-por-la-defensa-del-mar-en-el-sur-de-chile/
[16] See https://www.nomassalmoneras.cl
[17] Salmonicultura en la Reserva Nacional Kawésqar: Tribunal Ambiental anuló la RCA de dos centros de cultivo de salmones. [Salmon farming in the Kawésqar National Reserve: Environmental Court annuls RCAs of two salmon farming centres]. Fima, 28 December 2022. Available at https://www.fima.cl/2022/12/28/salmonicultura-en-la-reserva-nacional-kawesqar-tribunal-ambiental-anulo-la-rca-de-dos-centros-de-cultivo-de-salmones/
[18]Ibid. Cit.
[19] The Indigenous World 2022. Copenhagen: IWGIA, 2022. Available at https://www.iwgia.org/doclink/iwgia-book-the-indigenous-world-2022-eng/eyJ0eXAiOiJKV1QiLCJhbGciOiJIUzI1NiJ9.eyJzdWIiOiJpd2dpYS1ib29rLXRoZS1pbmRpZ2Vub3VzLXdvcmxkLTIwMjItZW5nIiwiaWF0IjoxNjUxMTM5NTg1LCJleHAiOjE2NTEyMjU5ODV9.jRnv3PeantfRZtJg4jph8xdshK5Mh25Z3hlcPs9As_UC
[20] See Convención Constitucional. Propuesta Constitución Política de la República de Chile 2022 [Constitutional Convention. Proposed Political Constitution of the Republic of Chile 2022]. Available at https://www.chileconvencion.cl/normas-aprobadas-pleno/
[21] See https://observatorio.cl/reflexiones-ciudadanas-en-torno-a-la-derrota-del-apruebo/
[22] See https://constituyente.uchile.cl/clavesconstituyentes/academicos-u-de-chile-advierten-escasa-incidencia-de-pueblos-originarios-en-el-proceso-constitucional/
[23] See https://causas.1ta.cl/causes/259/expedient/7533/books/206/?attachmentId=13093.
[24] See https://clasificacionespecies.mma.gob.cl/wp-content/uploads/2019/10/Heleobia_atacamensis_10RCE_03_PAC.pdf.
[25] Regarding heleobia atacamensis, see: http://especies.mma.gob.cl/CNMWeb/Web/WebCiudadana/ficha_indepen.aspx?EspecieId=5418&Version=1. Other species that inhabit the Salar de Atacama are in a similar situation, affected by the metal and non-metal mining industry, according to the Ministry of the Environment in the National Inventory of Species (https://clasificacionespecies.mma.gob.cl/).
[26] The Indigenous World 2022. Copenhagen: IWGIA, 2022. Available at https://www.iwgia.org/doclink/iwgia-book-the-indigenous-world-2022-eng/eyJ0eXAiOiJKV1QiLCJhbGciOiJIUzI1NiJ9.eyJzdWIiOiJpd2dpYS1ib29rLXRoZS1pbmRpZ2Vub3VzLXdvcmxkLTIwMjItZW5nIiwiaWF0IjoxNjUxMTM5NTg1LCJleHAiOjE2NTEyMjU5ODV9.jRnv3PeantfRZtJg4jph8xdshK5Mh25Z3hlcPs9As_U
[27] See https://www.pjud.cl/prensa-y-comunicaciones/noticias-del-poder-judicial/74522.
[28] See https://www.mch.cl/2022/03/10/biministro-jobet-anuncia-que-chile-cuenta-por-primera-vez-con-una-politica-de-estado-para-una-mineria-sustentable/.
Tags: Women, Global governance, Human rights, Biodiversity
