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CHILE: Mixed Reception for Indigenous Protection Code

Daniela Estrada

SANTIAGO, Jun 13 2009 (IPS) - Although it is still in the process of being drafted, a “code of responsible conduct” promoted by the Chilean government to regulate public and private investment in indigenous areas has already drawn resistance.

“The code is an inadequate mechanism, because it does not resolve the deeper underlying problem: achieving sustainable management of Chile’s natural resources, with full respect for environmental rights and the rights of citizens, especially indigenous peoples,” Nancy Yánez, co-director of the non-governmental Observatorio Ciudadano (Citizen Observatory), told IPS.

“What the code does is validate the practice that has been followed up to now, in which the state washes its hands of the political responsibility of having to decide how and where investments are made, based on strategic planning for natural resources,” said Yánez, a lawyer and expert on the rights of indigenous people.

The approval of vast forestry plantations, paper pulp mills, mines, hydroelectric dams, highways, airports and other mega-projects in the ancestral lands of indigenous people, who number over one million in this country of 16 million, is today one of the main sources of conflict with government authorities.

The so-called “indigenous code” promoted by the centre-left administration of socialist President Michelle Bachelet is aimed at bringing Chile into compliance with International Labour Organisation (ILO) Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries, which is set to go into effect in this country on Sept. 15.

So far, the debate, described as “very positive” by Presidential Commissioner for Indigenous Affairs Rodrigo Egaña, has focused on a draft version of the “code of responsible conduct for public and private investment in indigenous lands and development areas”. According to the 154-page document, indigenous territories cover nine million hectares, out of the country’s total of 75.5 million hectares.

After the government has collected proposals and observations on the document, a finetuned version will be submitted to a public “national indigenous consultation process,” the results of which will once again be processed by the government, to draw up the final guidelines and a draft law. President Bachelet will have the last word.

The guidelines will at first only be binding on public investment, and voluntary for private investment – an aspect that drew harsh criticism from Yánez. Only after a law on the question has been passed will the guidelines be compulsory across the board.

The code proposes new “spheres of protection” for indigenous people, related to their land and territories, natural resources, tangible and intangible cultural heritage, genetic resources, and knowledge and associated practices, as well as their education, health, security, work and labour conditions.

The “spheres of protection” would also include processes of participation by local communities in investment projects that affect them, “transparency and prevention of corruption” and “community participation in benefits.”

The draft code of responsible conduct states that in any case in which an investment project affects indigenous land, territories or natural resources, the communities in question must be consulted. It also says indigenous people are not to be displaced from their land or territories, but that when this is “inevitable,” the move must be carried out with free, prior and informed consent.

The code adds that “whenever possible, proponents of investment projects will seek mechanisms of fair and equitable participation in the benefits of a project carried out on indigenous land or in areas of indigenous development. That participation will be designed according to mutually agreed conditions.”

Investment projects that live up to the standards outlined in the code will be approved for a three-year period – which can be extended – by the national certification board, a seven-member public body to be created under the Ministry of Planning and Cooperation, made up of a chair named by the president, three indigenous delegates, and one representative each for academia, the business community and civil society.

Mixed reactions

Indigenous communities in Chile, most of which are Mapuche, are divided over the draft code.

Mapuche leader Aucán Huilcamán of the Council of All Lands (Consejo de Todas las Tierras) welcomed the code, which in his view will make it possible to block investment projects in indigenous territories.

But the Wenteche-Pewenche Territorial Alliance (Alianza Territorial Wenteche-Pewenche), which groups different Mapuche communities, came out against the code, complaining about how the government has implemented the process of participation of indigenous people as stipulated by ILO Convention 169.

The two national indigenous consultation processes carried out so far – on mechanisms for political participation and on the constitutional amendment that accorded indigenous people formal recognition – dealt with initiatives that had already been decided by the authorities instead of being hammered out first with indigenous groups themselves, and the same thing is happening in the case of the code of responsible conduct, the Alianza’s political committee told IPS.

Presidential Commissioner Egaña has acknowledged that there is room for improvement in the government’s public consultation processes.

For his part, Gustavo Quilaqueo, president of Wallmapuwen, a Mapuche political party in the process of gaining legal status, told IPS that “We see the code as an important and necessary step in a country with such a low standard in terms of recognition of the rights of indigenous peoples.

“However, we are critical of the approach taken towards the draft code by the government and the United Nations Development Programme (UNDP) itself,” which is advising the government, said the Mapuche leader.

“In practice, it would look like there is no real effort to recognise or guarantee collective rights, which is the spirit of Convention 169, but instead to pave the way for the development policies that we question and that have triggered a large part of the conflicts in Mapuche territory,” said Quilaqueo.

In some Mapuche areas, a long history of conflicts over what native communities claim as their ancestral land continues today, and prominent international human rights groups have reported abuses suffered by indigenous villagers at the hands of the security forces.

“We don’t think it is a good idea for the rights of our people to prior, free and informed consultation (in accordance with Convention 169) to be limited to a bilateral question between ‘communities and companies’ or even between ‘individuals and companies’, which would clearly benefit whoever has more power in the negotiations – that is, investors and their projects,” he added.

“Convention 169 establishes three overriding standards: prior, free and informed consultation; participation of indigenous peoples in the benefits generated by projects; and compensation for damages,” said Yánez.

“The code of responsible conduct does not ‘operationalise’ those standards; what it does is promote processes of negotiation on the environmental, social, cultural and economic impacts of any given project in indigenous territory,” she said.

“What the state does is act as a referee, guaranteeing that these negotiation processes are carried out under minimally equitable conditions,” said the co-director of the Observatorio Ciudadano

“Nor is it clear to us how effective the code will be, given that it states that communities opposed to a given private investment initiative must justify their position before the National Certification Board, whose current makeup is designed to make the indigenous presence a minority when it comes time to vote,” said Quilaqueo.

“Basically, this is a new legal mechanism to approve and maintain the invasion by logging and mining companies, etc, in indigenous, especially Mapuche, territory,” said the Alianza Territorial Wenteche-Pewenche.

Opinions also vary in the private sector. While some companies and business analysts welcome the definition of clear guidelines to prevent conflicts with native communities, others complain that it will create a process parallel to the Environmental Impact Evaluation System, which already assesses effects on local communities.

Other analysts believe the requisites set by the code will drive up the cost of investments and force businesses to move to non-indigenous areas, which they say will merely aggravate the already high level of poverty in native lands.

Addressing the apprehensions of the business community, Bachelet’s chief of staff, José Antonio Viera-Gallo, told the local newspaper El Mercurio that “the government’s intention is far from discouraging investment.”

To the contrary, he said, compliance with ILO Convention 169 “can be a route to finding more effective ways to resolve likely conflicts.”

Yánez, citing the numerous conflicts over demands by indigenous peoples with respect to maintaining control over their natural resources, said “the underlying problem is Chile’s economic model.”

“Against this backdrop, the code on responsible conduct is perverse because it is aimed at buying off indigenous people to win their approval,” she said.

Nor does the code incorporate the latest precedents in international law, according to which in the case of mega-projects undertaken by the extractive industries, states should replace processes of “prior, free and informed consultation” with processes of “prior, free and informed consent,” she said.

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