How did Convention 169 come about?
On June 27, 1989, the General Conference of the International Labor Organization adopted Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries. The National Congress approved it and since September 15, 2009 it has been part of Chilean legislation.
Who does it apply to?
It applies to indigenous and tribal peoples in independent countries, whose social, cultural and economic conditions distinguish them from other sectors of the national community, and who are governed, totally or partially, by their own customs or traditions or by special legislation. This is the case of the original peoples of Chile. The agreement indicates that it applies to those who descend from populations that lived in the country or in a geographic region to which the country belongs at the time of the conquest or colonization or the establishment of current state borders.
What responsibility do governments assume?
Governments must assume, with the participation of indigenous peoples, the responsibility of developing actions to protect the rights of these peoples and guarantee respect for their integrity. These actions include measures that ensure members of indigenous peoples enjoy equally the rights and opportunities that national legislation grants to all people; promote the full realization of the social, economic and cultural rights of these peoples, respecting their social and cultural identity, their customs and traditions, and their institutions, and help the members of the peoples to eliminate the socioeconomic differences that may exist between the peoples indigenous members and other members of the national community in a manner compatible with their way of life.
What does the convention say about human rights and discrimination?
Indigenous peoples must fully enjoy human rights and fundamental freedoms, without obstacles or discrimination. The agreement establishes that special measures must be adopted to protect the people, institutions, property, work, culture and the environment of indigenous peoples. These measures must not be contrary to what such peoples freely express.
What must states do to enforce the covenant provisions?
The social, cultural, religious and spiritual values and practices of the peoples must be recognized and protected and the integrity of their values, practices and institutions respected.
What does the agreement say about consultation with indigenous peoples?
It is pointed out that indigenous peoples should be consulted, through appropriate procedures and in particular through their representative institutions, whenever legislative or administrative measures that may affect them directly are envisaged.
This aspect is central, since it obliges the State to establish a consultation mechanism, which considers the representative institutions of the peoples, so that they can freely participate in the decisions that affect them. It is established that the consultations must be carried out in good faith, in order to obtain consent or reach an agreement on the proposed measure.
Is there any allusion to the development priorities of these peoples?
Indigenous peoples have the right to decide their own priorities regarding their development process, insofar as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or use in any way, and to control, in as far as possible, their own economic, social and cultural development. They must also participate in the formulation, application and evaluation of national and regional development plans and programs that affect them.
The improvement of living and working conditions and the level of health and education of the peoples concerned, with their participation and cooperation, should be a priority in the global economic development plans of the regions where they live.
What should be taken into account when applying national legislation to indigenous peoples?
Their customs or internal norms, handed down from generation to generation, must be taken into account. The peoples must have the right to preserve their own customs and institutions, provided that these are not incompatible with the fundamental rights defined by the national legal system or with internationally recognized human rights.
Is there a special treatment in criminal proceedings?
To the extent that this is compatible with the national legal system and with internationally recognized human rights, the methods that the peoples concerned traditionally resort to for the repression of crimes committed by their members must be respected. The authorities and the courts must take into account the customs of these peoples when dealing with criminal cases. When criminal sanctions provided for by general legislation are imposed on members of these peoples, their economic, social and cultural characteristics must be taken into account.
In addition, preference should be given to types of sanction other than incarceration.
How does the Convention treat the relationship of indigenous peoples and the land?
Governments must respect the special importance for the cultures and spiritual values of the peoples of their relationship with the lands or territories, or with both, as the case may be, that they occupy or otherwise use, and in particular the collective aspects of that relationship.
The peoples must be recognized the right of property and possession over the lands they traditionally occupy. Furthermore, in appropriate cases, measures should be taken to safeguard the right of the peoples concerned to use lands that are not exclusively occupied by them, but to which they have traditionally had access for their traditional and subsistence activities.
Adequate procedures should be instituted to settle land claims made by the peoples concerned.
The native peoples should not be transferred from the lands they occupy. When exceptionally the transfer and relocation of these peoples are considered necessary, they should only be carried out with their consent, freely given and with full knowledge of the facts. Whenever possible, these peoples should have the right to return to their traditional lands as soon as the causes that motivated their transfer and relocation cease to exist. The transferred and relocated persons must be compensated.
What obligation does the State have with respect to natural resources?
The rights of peoples to the natural resources existing on their lands and to participate in the use, administration and conservation of these resources must be specially protected.
What regulations are there regarding labor rights?
Governments must adopt special measures to guarantee workers belonging to these peoples effective protection in terms of recruitment and conditions of employment, insofar as they are not effectively protected by the legislation applicable to workers in general, and to avoid discrimination.
Likewise, it provides that members of indigenous peoples must have professional training programs at a level equal to what is provided to other members of society. These programs must take into account the special needs of indigenous peoples and their communities, that is, their economy, social and economic conditions, and the specific needs of indigenous peoples.
Are there provisions in the agreement on health issues?
Yes, adequate health services should be supported, or the means that allow them to organize and provide such services should be made available to indigenous peoples, under their own responsibility and control. Health services should be organized at the community level, to the extent possible, and planned and managed in cooperation with indigenous peoples, taking into account their economic, geographic, social and cultural conditions, as well as their own prevention methods, healing practices and traditional medicines.
What happens if an indigenous people live in more than one state? Can they maintain their community, despite the borders?
Taking into account that many indigenous peoples of the same cultures share country borders, governments should take appropriate measures, including through international agreements, to facilitate contacts and cooperation among indigenous peoples across borders.
Should there be differences in the education given to native peoples?
Education programs and services for indigenous peoples should be developed and implemented in cooperation with them in order to respond to their particular needs, and should cover their history, knowledge and skills, value systems and all other social aspirations, economic and cultural.
Should native languages be taught?
Whenever feasible, children of the peoples concerned should be taught to read and write in their own indigenous language or in the language most commonly spoken in the group to which they belong. When this is not feasible, the authorities should consult the members of the indigenous people to see how to ensure that objective.