The Latin American Press reports that this year two Argentine court decisions have reinforced the requirement of governmental consultation with Mapuche communities prior to any legislative or administrative actions affecting indigenous peoples.
The decisions in the southern province of Neuquén, regarding the Mapuche communities of Huenctru Trawel Leufú and Mellao Morales, are extremely important in Argentina, where very few court rulings address indigenous issues, and in fact the government has long contended there were no indigenous peoples of Argentina. In addition, government consultation with native peoples has not been instituted as a State practice.
The court verdicts halted the development of two mining projects, one for hydrocarbons and another for metal mining.
In February, Judge Mario Tommasi rejected an appeal filed in 2007 by Petrolera Piedra del Águila to ensure the company’s entry into the fields of Los Leones, Umbral, and Ramos Mexia, which were blocked by the Mapuche community of Huenctru Trawel Leufú.
Despite Provincial decrees that supported the company, the judge denied the activity because it sought to enter indigenous territory without having “demonstrated full and proper compliance with the procedures for consultation and participation” as prescribed by Article 75 of the Argentine Constitution (with the specifications contained in Articles 6, 7 and 15 of the International Labor Organization’s Convention 169 on the Rights of Indigenous and Tribal People, which was ratified by Law 24 071) as well as by Article 53 of the Provincial Constitution, and Articles 10, 19, 29 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples.
“It is the first time that the full extent of ILO Convention 169 has been recognized, and that the United Nations Declaration is cited; it is a ruling that totally complies with the rights of indigenous communities,” said Juan Manuel Salgado, the lawyer for the Huenctru Trawel Leufú community and director of the Observatory of Human Rights for Indigenous Peoples. He stressed that “at first glance, [the verdict] justifies that the community not allow in the oil company.”
The villagers protected their lands at great risk, though. Several criminal cases were lodged against them, they were subjected to arson attacks, and suffered four years of harassment by security forces and civilians.
The other case involved the Mapuche community of Mellao Morales. They filed a 2008 case to annul a contract between Corporación Minera Neuquina, which belongs to the provincial government, and the Chinese firm Emprendimientos Mineros. The lawsuit alleged that the agreement gave the Asian company control of a copper deposit in indigenous territory, in violation of indigenous and environmental legislation.
On September 28, 2009, the Province’s highest court returned the case to the lower court, but before that ruled in favor of the Mapuche regarding the injunction, based on the ILO Convention 169 that protects the right to “collective existence, cultural identity, to their own institutions and the right to participation. In particular, as support for the injunction, we refer to the text of Articles 6.1, 6.2 and 15 — the right of consultation.”
The Public Prosecutor for the State of Neuquén appealed. On March 29, 2011 the Superior Court of Justice rejected the appeal and upheld the arguments of the earlier decision. Meanwhile, the trial to annul the contract is ongoing.
But all is not rosy, however, for indigenous rights in Argentina. Other recent court rulings undermined indigenous legislation. In November 2010, the provincial high court rejected the request to declare unconstitutional the 2004 establishment of the municipality of Villa Pehuenia, which took place on three Mapuche communities’ territory without consulting them.