The question of indigenous rights of the Mapuche indigenous group in Chile encompasses myriad issues: land rights, environmental protection of ancestral lands, the right to consultation and participation, enduring poverty, educational attainment, access to health, cultural and linguistic preservation etc. The issues seem ongoing, characterized by a deadlock of conflict and accusations, and aggravated by discrimination and prejudice. 

A history of marginalization and social exclusion, exacerbated in the era of Pinochet’s military dictatorship, has meant that despite reforms, the Mapuche people are still not benefiting from Chile’s fast economic growth. Historical racism and other prejudices have created distorted images of the “violent Mapuche” and the “good Mapuche”, generating widespread misunderstanding and laying the foundations for justifications for the controvertial anti-terrorist law. Ms Piquer argues that it is important to understand that Mapuche communities face very different concerns, their political positions are diverse, and therefore, they have distinct visions of how to realize their political, social, economic and cultural struggles.

Right to Consultation in Chile?

Consultation is the bedrock for constructive dialogue and resolution of disagreements between indigenous peoples, the Government and other relevant stakeholders. The 2007 UN Declaration on Rights of Indigenous Peoples (UNDRIP) requires that States consult and cooperate with indigenous peoples, to adopt measures, including those necessary to ensure the empowerment of indigenous peoples over their own internal and local affairs in accordance with their own institutions, practices and customs. The right to consultation, participation and self-management are also enshrined in ILO Convention No. 169, which stipulates that indigenous peoples must be consulted on issues, policies and development projects affecting them, and that they are able to engage in free, prior and informed participation in good faith, and through representative institutions.

Chile has ratified the ILO Convention 169 and voted in favor of UNDRIP, and yet few steps have been taken to ensure effective implementation of these international standards. Social conflicts arise when various development projects, natural resource extraction and infrastructure projects are carried out without prior consultation with the affected indigenous communities. When the right to consultation is not adequately observed, indigenous rights cannot be fully implemented, despite possible legal guarantees or an official prohibition of discrimination.

On 21 January 2013, Chilean President Sebastián Piñera announced a renewed effort to recognize the rights of indigenous people by proposing three measures, which would strenghten consultation: the establishment of consultation mechanisms required under ILO Convention 169, the creation of a Council of indigenous representatives and the adoption of an “Araucanía Law”. These projects have not been formally presented to the Congress and their content remains unknown. 

(Photo by Ministerio Secretaria General de la Presidencia)

There are currently two administrative rules regarding consultation, but many consider them flawed. The current Government wants to review this administrative guidance as part of President Michelle Bachelet’s program of reforms. On the first day of the Mapuche new year [June 2014], Ms Bachelet announced a new series of reforms, including broadening their political representation and returning Mapuche ancestral lands by buying back privately-owned land. This was to be implemented in her first 100 days in office – a promise she could and would not keep, due to Chile’s obligation under ILO Convention 169 to consult indigenous peoples on matters, which affect them. Instead, a Council of Indigenous People was to oversee this consultation process. This measure was again deemed as unrepresentative by many Mapuche. According to Ms Piquer, Chile's current Government has tried to implement consultations, but some indigenous communities have decided not the participate, believing that the process was flawed from the beginning. Participation would legitimize a process they do not believe is meaningful. 

As explained in the interview by Ms Piquer, there are currently two regulations on how business projects must be evaluated: the environmental declaration and the environmental impact study. The latter includes a citizen participation process. Those interested or affected can follow the various stages of project implementation online. This provides for a minimal degree of transparency. The drawback is that in practice, the environmental impact study does not provide for meaningful participation. These processes of participation have been criticized for being unsubstantial. Meetings are arranged simply to prove that regulations have been followed, but rarely are the opinions of communities taken into account.

The Supreme Court of Chile concluded that the process of participation within an environmental impact study is not enough to imply “indigenous consultation”. Indigenous consultation should be conducted separately to ensure the respect and protection of indigenous people’s rights. Ms Piquer reveals that only recently have companies started to determine just how to guarantee an indigenous consultation process that complies with international standards.

Right to Protest or Freedom of Assembly for the Mapuche Community?

(Photo by Amesnty International)

The stalemate of accusations is particularly apparent when looking at the ability of the Mapuche peoples to voice their concerns and grievances, and express and defend their ideas through the freedom of assembly. Some Mapuche communities have been accused of violent forms of protest, which has led to excessive use of force by the police. According to Ms Piquer, while some individuals succumb to violent forms of protest to further their claims, the militarization of police is particularly alarming for several reasons.

Firstly, all over Chile, police responses to peaceful manifestations tend to be disproportionate. In this sense, Chile is a violator of international law, which clearly limits any restrictions to peaceful assemblies only for the purposes of protecting public order and the rights of others. Any use of force by the police must be kept to the minimum level required to diffuse any threats to peace, safety and stability. According to Ms Piquer, Chile is in the business of controlling street protests and manifestations from Santiago to faraway regions. Additionally, police raids in Mapuche communities can escalate and turn extremely violent, targeting entire communities. The police has been accused of stealing property, firing gunshots and using tear gas affecting children, pregnant women and the elderly. However, despite the existence of evidence to support these claims, police impunity persists.

Secondly, Chilean police protocols have only been made public several months ago. Until recently, it was unknown whether police forces were following protocol or not. The protocols are “reasonably in line with international rules”, says Ms Piquer. However, how will those protocols be appropriately enforced? Will police violence be investigated adequately? Currently, police violence claims are not investigated in ordinary courts, but instead in military courts, where no sanctions - or low sentences at best - are passed to those guilty of excessive use of force.

Thirdly, despite the fact that Chile is not facing any direct threats of terrorism, indigenous peoples are accused of committing crimes considered “terrorist acts”. The notorious anti-terrorism law (N° 18.314), a legacy of the military Government of Augusto Pinochet, is applied disproportionately against Mapuche communities protecting or repatriating (“recuperación”) their ancestral lands. According to the UN Human Rights Committee, the Mapuche represent more than 60% of those investigated or prosecuted on terrorism charges. One of the greatest concerns is that the definition of ‘terrorism’ is very broad, and as Ms Piquer argues, “covers crimes that are not usually considered ‘terrorist’ internationally”, such as simple arson.  

Furthermore, the violation of due process of law with the use of protected witnesses is particularly alarming. Ms Piquer added that the use of anonymous witnesses hinders the right to a defense by making it difficult to counter interrogate or question the credibility of witnesses, among other reasons.

(Photo by Santiago Times)

In early July 2014, the UN Human Rights Committee completed its consideration of the sixth periodic report of Chile on its implementation of the provisions of the International Covenant on Civil and Political Rights, which also included looking at the application of the anti-terrorism law to the Mapuche people. Furthermore, the Special Rapporteur on human rights and counter-terrorism, Ben Emmerson stated that the “[anti-terrorist law] has been applied in a confused and arbitrary fashion that has resulted in real injustice, has undermined the right to a fair trial, and has been perceived as stigmatizing and de-legitimising the Mapuche land claims and protests.”

However, in late July 2014, in a landmark decision by the Inter-American Court of Human Rights, the anti-terrorism law was condemned. The Court decided that Chile violated several articles of the American Convention on Human Rights, including the principle of legality, presumption of innocence, right to freedom of expression, right to an impartial judge, equality before the law and non-discrimination against seven members of the Mapuche community and a human rights defender. It obligated Chile to provide all necessary support to the victims who were accused and arrested, including eliminating the effects of the terrorism sentences and to provide reparations to the victims.  

By September 2014, a new proposal to reform the anti-terrorist law was not well received by indigenous communities from the Araucanía region, perceiving it as a new strategy of repression.

Looking Forward

The question of consultation and freedom of assembly are not strictly unrelated. In 2010, President Sebastián Piñera announced a roundtable (“mesa de diálogo”) in order to resolve the conflict between the authorities and 30 Mapuche prisoners, who were hunger striking for two months for being processed under the anti-terrorist law for acts of violence, including arson. According to Ms Piquer, Piñera invited representatives from different indigenous communities, but no agreement was reached. The indigenous representatives terminated their participation, and accused the roundtable for falling short of “true dialogue”.

Ms Piquer believes that representation of Mapuche interests and concerns on a national-level is crucial in order to affect the policies that in turn affect Mapuche lives. Political representation is pivotal in influencing their capacity to make their voices heard and to participate in decisions, which affect them. Not having a formal space for political participation may undermine any future proposals for the resolution of conflict.

("Ante la injusticia y persecución, resistencia y lucha hasta el final")

She acknowledged that the current Intendente of Araucanía region of Mapuche origin, Mr Francisco Huenchumilla, has chosen a novel path in addressing the issue. He sees the resolution of the conflict as a political solution, and not simply a police or development issue. This is supported by the recommendations of the Special Rapporteur, Ben Emmerson:  

“The cornerstone for a national strategy should be the constitutional recognition of the Mapuche’s right to exist as indigenous peoples within the State of Chile, together with the creation by the incoming Government of an adequately staffed and funded ministry for indigenous affairs. The resolution of this dispute needs to be a political priority for the next incoming Government.” 

Looking forward, Ms Piquer suggested that in order to end this spiral of violence and discriminatory allegations, the Chilean Government must recognize the long history of violations against the rights of the Mapuche. Official recognition of the injustices faced by indigenous peoples in Chile may help heal the wounds of deep mistrust. 

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This podcast is made in coordination with The UNPO and the online Mapuche Radio.