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Indigenous rights in Argentina

Maria Delia Bueno

In November 2010, the Argentinean police suppressed a movement by the Toba Qom indigenous community from La Primavera, in the province of Formosa. The community was trying to bring attention to communal land claims by means of a roadblock that had lasted almost four months. The incident exposed the authorities’ lack of genuine recognition of the community and its territorial rights, the criminalization of its leaders and the serious problems it faces in fully enjoying economic, social and cultural rights —issues that the government was aware of. Although the process of recognition of the rights of Indigenous Peoples in Argentina began over two decades ago, a lasting solution has not yet been found and the enjoyment of such rights is not guaranteed.

The rights of Indigenous Peoples were incorporated into Argentina’s National Constitution in 1994 as well as in provincial constitutions and other laws that followed the 1985 law on Indigenous Policy and Aboriginal Community Support. Despite the new prevailing climate, Indigenous Peoples face the lack of implementation of such laws and a tortuous relationship with the government. Indigenous community claims on land, territories and natural resources —the main points of contention— are ongoing and increasingly complicated.

The land ownership system that was established by the state after the Spanish conquest did not account for indigenous systems. Without legal protection, communities were at the mercy of local expropriators, administrators and authorities. As a result of the treatment and destruction of their traditional production base for food self-sufficiency, Indigenous Peoples were pushed out to remote and isolated areas or into cities.

Today, lands that are used for hunting, fishing, fruit gathering, agriculture and raising small animals, or areas destined for cemeteries and sacred places, are sought after for major development projects. These include the logging and extractive industries; the exploitation of mineral, hydrocarbon and natural resources; the construction of pipelines, roads and dams; large-scale agricultural expansion; and tourism. Damage to lands and water causes environmental imbalance and destruction. The result leads to evictions, displacements, expropriations, harassment and permanent discontent.

Indeed, two legal systems still coexist in Argentina: the first comes from pre-existing societies, whereas the second was introduced by the conquerors and is administered by the state. Indigenous systems are customary, informal oral traditions that are based on the culture and practices recorded in historic memory rather than those imposed or regulated by a central authority. Ownership of the land is collective or communal, and plots of land, having flexible boundaries, were not measured before the Conquest. This type of ownership is historically transmitted to descendants and is nontransferable, as the land is destined for the group’s development through a deep spiritual relationship.

By contrast, European systems are legal or formal written traditions enforced and administered by bureaucratic and standardized governments. Assessed and demarcated land ownership is individual or private, and the land held in the owner’s name is transferable. Ownership implies wealth or productive property destined for distribution and profit in the real estate market through legal relationships.

Therefore, Customary Law differs considerably from the major Western legal families of Common Law and Civil Law. It offers tradition, sources and access as well as a constellation of values, concepts and rationality, but lacks the specific organizations for the production of norms that are found in formal legal systems. The crux of the matter is not the mere existence or recognition of Customary Law, but its full acceptance into national law.

However, Argentinean state law is mono-cultural and blind to diversity. Despite the fact that the country recognized its multi-ethnicity in 1994 and acknowledged the presence of indigenous Customary Law, there is no space for diversity into a Western system that does not know legal pluralism and negates difference.

Indigenous Peoples are part of an ancient society but live within a legally organized state, resulting in overlap between their customs and the law. Since the concept of property is different in both systems, in some provinces occupants of fiscal lands are called “fiscaleros” (rural squatter settlers) even though they are actually settled on ancient indigenous territories whose ownership was passed on to the government. Nevertheless, by constitutional mandate they are the legitimate owners of the land, which should be registered in their name.

An emergency law was enacted in 2006 in regard to property and the possession of lands traditionally occupied by the native indigenous communities in order to halt evictions related to territorial rights. This law has been extended until 2013. The National Institute of Indigenous Affairs, which is a governing organization dependent on the Ministry of Social Development, manages the National Program for Territorial Survey of Indigenous Communities. This survey includes land reconnaissance, land surveying and registration of real estate property for the title of ancestral lands. It is based on Convention No. 169 of the International Labour Organization regarding Indigenous and Tribal Peoples in Independent Countries, which was ratified by Argentina with the 1992 law and recognized in the National Constitution.

Instead of providing comprehensive and definitive solutions, the survey has agitated existing conflicts and interests. There are impositions, violations, obstacles, delays and challenges to the communities because of insufficient indigenous participation. Institutions have been assimilationist and their responses have been paternalistic. Indigenous communities are seen as foreigners on their own native lands. Instead of ensuring effective enjoyment of land and sacred identity rights, they are being replaced with voluntaristic and assistancialistic plans or programs. The recognition of indigenous rights demands new strategies, but there is no training or empowerment for the exercise and enjoyment of those rights. In addition to excessive litigation and vulnerability among indigenous communities, there is a lack of awareness of their situation among the greater Argentinean population.

Argentina could examine the lessons learned in Canada, where land and natural resource claims have been institutionalized through comprehensive and specific demands. These demands are approached in two ways: treaties, which are a source for resolving ancient claims and pending disputes; and negotiation, an alternative and optional method for resolving conflicts that avoids legal authority and is promoted by the courts for the benefit of all Canadians. There have been significant developments in this area and leaders, civil servants, professionals and academics have demonstrated their expertise, also making sure to raise awareness of the issues among Canadians.

Further, Canada has developed Native Studies programs with an interdisciplinary focus and holistic approach that offers tools and strategies for decolonization. From this perspective, it would be encouraging for Argentina to establish systematic indigenous studies that are not compartmentalized in order to benefit from Canadian experiences and make effective the rights that have been recognized for the benefit of all Argentineans.

Maria Delia Bueno, is an Argentinean lawyer and legal counsel for the Organization of Indigenous Nations and Peoples of Argentina (ONPIA). She is also a member of the Education for Peace Research Team, Faculty of Psychology, University of El Salvador. The author can be contacted at: maria_delia_bueno@hotmail.com.

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