The Indigenous World 2024: Chile
Despite steadily increasing since the 1990s, the Indigenous population has not seen any major variations since the 2017 census. 2,185,792 people thus 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] There is a sustained trend of moving to urban areas, with 87.8% of Indigenous people now living in the cities compared to 12.2% in the countryside.[2]
The Law 19,253 of 1993 on the Promotion, Protection and Development of Indigenous Peoples, or the “Indigenous Law”, has not been amended despite urgent reform being 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 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the 2016 American Declaration on the Rights of Indigenous Peoples.
The Presidential Commission for Peace and Understanding
On 21 June 2023, President Gabriel Boric announced the formation of a Presidential Commission for Peace and Understanding. The aim of this commission is to lay the groundwork for a medium- to long-term solution to the unresolved land and territorial claims of the Mapuche people and their communities. In turn, it is seeking to contribute to a better coexistence between the inhabitants of the Bíobío, La Araucanía, Los Ríos and Los Lagos regions in the traditional Mapuche territory of southern Chile.
The primary mandate of this commission, composed of eight prominent individuals from a broad political spectrum, including distinguished members of the Mapuche people, parliamentarians, representatives of the business community and farmers from the region, is to determine the Mapuche communities’ real demand for land and propose different concrete mechanisms for their reparation through institutional channels, given the dispossession of the lands and territories to which the Mapuche people have been subjected throughout history.
Although longstanding, land conflicts in the central-southern regions of Chile (from Bíobío to Los Lagos), in the territory traditionally occupied by the Mapuche people, have worsened in recent decades, seriously affecting interethnic coexistence in this part of the country. Indeed, Mapuche communities and organizations have mobilized in recent years to demand the return of the lands and territories of traditional occupation previously taken from them. In the face of this Mapuche protest, in some cases involving violent actions on the part of certain groups, the State's response has been to use force and disproportionate criminal prosecution, often resulting in violations of the rights to life, physical and psychological integrity, and due process, among others.
The Commission’s aim is to establish a process of dialogue that will result in a preliminary agreement with the Mapuche representative organizations and communities in order to address their current expectations for land and territorial reparations.
The success of the Commission's work does, however, face significant challenges that cannot be overlooked. On the one hand is the lack of knowledge among its members, some of whom represent sectors (business) and unions (farmers), of the human rights standards that need to be taken into consideration when resolving land and territorial conflicts that affect Indigenous Peoples. Indeed, some of its members have questioned whether the commission should be addressing the so-called “ancestral lands” in its work at all, implying that it should limit itself to dealing only with the demands for land that the State has recognized to the Mapuche but which are not in their possession today. It has also been pointed out that the focus of the Commission's work should be on financial compensation for the lands taken from the Mapuche.
As a result, it is imperative that bodies are created within the scope of this Commission’s action that can enable the Mapuche communities and organizations responsible for the territorial claims processes to accredit such claims in line with the requirements of international standards, so that they can channel their legitimate demands through the institutional channels to the Presidential Commission for Peace and Understanding.
Given the diversity of the Mapuche people, another particularly relevant issue is that of identifying effective paths for inclusivity within the dialogue that the Commission is promoting with the different representative organizations of the Mapuche people. The intention is that the agreements reached should have legitimacy among all the different sectors of the Mapuche people, always taking into account the standards of participation envisaged in international law on Indigenous Peoples.
Constitutional process
As noted in the Yearbook 2023, the rejection of the Constitutional Assembly’s proposed draft constitution in 2022 (a draft that included Indigenous representation proportional to their population and nearly 50 provisions, out of a total of 380, referring to the recognition of the collective and individual rights of these peoples and recognizing the State of Chile as plurinational and intercultural) resulted in a new process being undertaken during 2023 to produce a new Constitution for Chile.
This new process was driven by an agreement between the political parties with parliamentary representation, and strongly challenged due to its limitations in terms of human rights. This is explained by the fact that it defined the so-called “institutional bases”, which includes the rights of Indigenous Peoples, among others, as part of the “Chilean nation”. In addition, the institutional framework comprised an Expert Commission appointed by the two chambers of the National Congress, with responsibility for drafting the new constitutional draft, plus a Technical Committee on Admissibility to safeguard the constitutional content, also appointed by both chambers, and a Constitutional Council, comprising 50 democratically elected members, i.e. largely limited to the political parties to the exclusion of any citizens. Although a mechanism was considered for electing Indigenous candidates, via a special list, to the Constitutional Council, their number was conditional upon the percentage of Indigenous votes, which resulted in only one Indigenous representative being elected.
The ensuing text thus embodied the vision of the State and of the conservative majority that made up the Constitutional Council. There was wholly insufficient recognition of economic, social, cultural and environmental rights in its provisions, and limited recognition of the rights of Indigenous Peoples, plus additional phrasing stating that they form part of the “one and indivisible” Chilean nation, laying bare the conservative parties’ unfounded fears of an Indigenous separatist desire.
The conservative vision contained in the constitutional proposal, which was not inclusive of the different visions of State and society existing in the country, culminated in its rejection in the December 2023 referendum.[3] As a result, the 1980 Political Constitution imposed during the dictatorship remains in force. This text makes no mention of Indigenous Peoples nor of their individual or collective rights. Chile therefore remains one of only two countries in Latin America, together with Uruguay, that does not recognize Indigenous Peoples in their Constitution. This is in spite of the country’s significant Indigenous population, and the conflict between the Chilean state and the Mapuche people over recognition of their rights which, far from encouraging an institutional solution to this conflict, will very possibly exacerbate it.
Governance and Indigenous conservation in protected areas
To understand territory from an Indigenous perspective involves not only considering its geophysical aspects, nor simply its sociocultural aspects; it also involves understanding the relationships that exist between those who cohabit a space full of meaning. This is signified by dreams, memories, stories, lineages and spirits that guard what is essential for life: water, forests, mountains and medicine.
Today, 85% of the world's biodiversity can be found on Indigenous territories, and efforts in recent years to recognize the contributions of these peoples to global conservation and the advocacy they have been doing in international forums have been significant; for example, in the progress and strategies of the Kunming-Montreal Global Biodiversity Framework.
Law 21,600 came into force in September 2023 in Chile, creating the National Biodiversity and Protected Areas Service (SBAP), a significant step towards ensuring better administration of protected areas in Chile. This includes an unprecedented element: it recognizes the rights of Indigenous Peoples to participate in and manage these “areas”. Unfortunately, the law does not recognize the concept of territory, despite years of requests and advocacy by Indigenous representatives, and only guarantees the concept of “area” for titled Indigenous lands. The question being asked by some Indigenous leaders in Chile is: “Do I have to be the legal owner of my land to protect and safeguard the territory?” The SBAP is indeed a step in the right direction for a country that has historically denied Indigenous Peoples any participation or territorial management rights; however, it does not guarantee Indigenous Peoples the effective exercise of their right to self-govern the territories in which they have historically coexisted, territories that guarantee not only a strengthening of their identity but also of their knowledge, memories and unique relationships with what the Mapuche Nation call itxofillmogen, all present and sentient lives. To understand Indigenous Peoples’ governance of protected areas requires understanding their ceremonies, their offerings, their harvests, their upbringing, their sociopolitical way of dialoguing with nature. Because, for Indigenous Peoples, there are no areas of traditional conservation; rather, the entire territory is a space of protection and safeguard: the home, the animals, the forest, the waterfalls and the volcanoes.
Today, many territories and communities see the SBAP Law as an opportunity to advance or at least build the foundations of a future process that will see their complete governance of those protected areas already legally conserved, and in which a large part of the biodiversity of their territories is concentrated. There is an awareness and certainty that these areas are also the most vulnerable to extractive pressure and climate change. The communities, territories and Indigenous organizations that have been working on this issue for years therefore urgently need to have an effective impact on creating the implementing regulations required by the SBAP Law nationally. On a local level, they need to make progress in the governance roundtables, where it is essential that Indigenous Peoples present their initiatives for protecting and safeguarding those territories of life that are currently in the hands of the State and the National Forestry Corporation (CONAF). Their management and their decision-making must be recognized in order to advance towards an open, participatory and intercultural conservation, given the backdrop of the continuous depredation of biodiversity on the part of land speculation, the real estate and tourism industries, extractivism and extractive policies.
Attempts to amend the Coastal Marine Spaces Law
The Indigenous Peoples Coastal Marine Spaces Law (Ecmpo), a regulation promoted by the Mapuche Lafkenche communities but aimed at all Indigenous Peoples with links to the sea, seeks the recognition and protection of their territorial rights over the coastline and marine space. Since its entry into force in 2008, it has become established as a mechanism by which to hand over the administration of a demarcated marine space to a community or association of communities that has exercised customary use of the space, with the aim of preserving its uses and ensuring the conservation of the natural assets found there and promoting the welfare of the communities.
Since 2008, different Indigenous Peoples have increasingly used this law to defend their territorial rights and to protect their coastal and marine areas, which are being increasingly threatened by exogenous development models, extractivism and pollution. There are currently more than 100 Ecmpo applications spread across seven regions of the country and covering an area of more than 30,000 square kilometres. Given the long processing times, which exceed the legal deadlines, only around 13% of these applications have yet come to fruition, however. Political and administrative obstacles began to arise as soon as the scope and impact this law would have on the reorganization and governance of Chile's marine and coastal areas became evident.
In April 2023, a bill was introduced to amend the Ecmpo Law (Gazette No. 15.862-21), in order to “perfect its implementation”. This attempt to modify the law in reality seeks to curtail the rights acquired by Chile's coastal Indigenous communities since the amendment is being promoted by “sectors linked to the indiscriminate exploitation of marine resources and endorsed by some politicians with clear economic interests that they disguise as ‘development’”.[4]
Since then, a dangerous disinformation campaign against Ecmpo applications has intensified in the coastal marine territories, along with constant threats to and intimidation of defenders of these coastal spaces. This was denounced in a public statement from the Network of Native Women for Defence of the Sea [Red de Mujeres Originarias por la Defensa del Mar].[5]
More recently, Daniel Caniullán Huentel, lonko of the Pu Wapi Indigenous Community of Melinka, Guaitecas in the Chilean region of Aysén, has been subjected to constant intimidation in his role as a Mapuche authority and as a petitioner in the application for the Cisnes Indigenous Peoples Coastal Marine Area.[6]
These attempts to amend the Ecmpo Law and the threats to defenders of coastal marine areas ignore the important contributions that these areas make to the social, cultural and political development of Indigenous Peoples and the country in general, in terms of their contribution to the conservation of the country's common assets, to the food sovereignty of hundreds of communities and to the family, local and community economy of Indigenous Peoples and Chile generally. They also ignore the alliances that have been built around the Ecmpo application and administration processes with artisanal fishermen, shore gatherers and other key actors who use the coastline.
No consultation on the National Lithium Strategy
In April 2023, President Boric unveiled the main outlines of the National Lithium Strategy that his government intends to promote. This is at a time when global demand for lithium – as well as the price of this non-metallic mineral – is growing exponentially. Among the main actions proposed in this strategy are the creation of a National Lithium Company, the incorporation of the State into the productive activity of the Atacama Salt Flats [Salar de Atacama], and the prospecting of other salt flats that are not declared as protected, promoting a form of exploitation that involves the use of technologies with low environmental impact. According to the government, the key objectives of the strategy are to incorporate capital, technology, sustainability and added value into the productive sector, in harmony with the communities.
So far, lithium mining in Chile, which is the world's second largest producer of this non-metallic mineral, has been undertaken by private national and foreign companies in the Atacama Salt Flats, the traditional territory of the Lickanantay or Atacameño people. Its impacts on the rights of these peoples, including their lands, territories, water, culture, development priorities, and so on, have been denounced by the Council of Atacameño Peoples [Consejo de Pueblos Atacameños / CPA).[7]
Given the direct impact that the National Lithium Strategy, as public policy, will have not only on the Lickanantay people who live in the Atacama Salt Flats but also on the Colla people of the Maricunga Salt Flats, where the State has authorized the exploration and exploitation of lithium by Salar Blanco, a company with Australian capital and acquired by the State mining company CODELCO during 2023, the government might have been expected to submit its announcement to consultation. This has not, however, been the case to date.[8] At the end of the year, CODELCO signed an agreement with SQM, a company with national and Chinese capital, for the exploitation of the Atacama Salt Flats. The agreement was signed without prior information or consultation of the Lickanantay people. This is despite the fact that these companies initially involved the Council of Atacameño Peoples in their negotiations. This repeats a pattern of State violation of the Indigenous Peoples’ right to consultation and has also aroused much concern on the part of the Council of Atacameño Peoples.[9]
José Aylwin, Simón Crisóstomo, Hernando Silva and Karina Vargas, members of the Observatorio Ciudadano (www.observatorio.cl ).
This article is part of the 38th 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 man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 in full here
Notes and references
[1] National Institute of Statistics. “Síntesis de resultados Censo 2017, 2018”. https://www.censo2017.cl/descargas/home/sintesis-de-resultados-censo2017.pdf
[2] Ibid.
[3] Aylwin, J. “Una que nos una': promesa incumplida”, El Mostrador, 22 November 2023. https://www.elmostrador.cl/noticias/opinion/2023/11/22/una-que-nos-una-promesa-incumplida/
[4] “Declaración pública ante intento de modificación a la Ley 20.249 – Ley Lafkenche”. Observatorio Ciudadano, 24 April 2023. https://observatorio.cl/declaracion-publica-ante-intento-de-modificacion-a-la-ley-20-249-ley-lafkenche/?fbclid=IwAR17_k5IpxvcgPhq0AYZP3qLtd5QCuNtI1QUKEG81aIs9D9PPT4g7aHSfZw
[5] Red de Mujeres Originarias por la Defensa del Mar, "Declaración Pública", 21 January 2024, Facebook. https://www.facebook.com/photo/?fbid=319835001023643&set=pcb.319835144356962
[6] Consejo de Autoridades Ancestrales del gran territorio del Sur, "Declaración pública", ICCA, 23 January 2024. https://www.iccaconsortium.org/wp-content/uploads/2024/01/nizol-ngulam-ta-futxa-willimapu-apoyo-longko-caniullan.pdf
[7] Aylwin, J., Didier, M., Mora, O., "Informe evaluación de impacto en derechos humanos de SQM en los derechos del pueblo indígena Lickanantay", Observatorio Ciudadano, 5 August 2021. https://observatorio.cl/evaluacion-de-impacto-en-derechos-humanos-de-sqm-en-los-derechos-del-pueblo-indigena-lickanantay/
[8] Aylwin, J., "La Estrategia Nacional de Litio y los derechos humanos", El Desconcierto, 27 April 2023 https://www.eldesconcierto.cl/opinion/2023/04/27/la-estrategia-nacional-de-litio-y-los-derechos-humanos.html
[9] Isla, J., "Consejo de Pueblos Atacameños escala sus cuesitonamientos al acuerdo Codelco-SQM y anuncian que exigirán 'retratacciones'", Diario Financiero, 4 January 2024. https://www.df.cl/empresas/salud/consejo-de-pueblos-atacamenos-escala-sus-cuestionamientos-al-acuerdo
Tags: Land rights, Business and Human Rights , Biodiversity, Conservation
