INDIGENOUS RIGHTS IN SOUTH AMERICA: A COMPARISON OF LEGAL REGIMES--ARGENTINA
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INDIGENOUS RIGHTS IN SOUTH AMERICA: A COMPARISON OF LEGAL REGIMES--ARGENTINA
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JUAN SONODA is a partner in the Argentine law firm Beretta Godoy. He is the Legal Practice Director of the firm, and also the partner in charge of the Litigation and Energy & Natural Resources departments. His expertise focuses on the areas of foreign investment, international business transactions, energy and natural resources, and dispute resolution. He has represented parties in arbitrations conducted under the rules of the ICSID and he has assisted several companies in important and complex commercial litigations. He has published several articles on natural resources, BITs, bankruptcy, conflicts of laws, and foreign investment. He has directed and co-authored a book on indigenous rights in South America from the perspective of the natural resources industry, published by the Rocky Mountain Mineral Law Foundation. He graduated cum laude from the University of Buenos Aires, School of Law, and holds a Master in Corporations Law from the New York University School of Law. He has been an assistant professor to "Civil and Commercial Contracts" course, University of Buenos Aires. Juan is admitted to the Buenos Aires and New York Bars, and is an active member of the Rocky Mountain Mineral Law Foundation, New York State Bar Association and the International Bar Association. He has received numerous recognitions: Chambers Latin America has singled Juan out since 2010 among the leading lawyers in Energy & Natural Resources (Mining): "Clients consider Juan Sonoda 'fast and efficient'. He is particularly prominent in international arbitrations and litigation." In Litigation and Dispute Resolution, Chambers Latin America mentions that: "Juan Sonoda co-leads the firm's dispute resolution department. He focuses on foreign investment and international litigation." Legal 500 singles out Juan Sonoda's expertise in mining and in litigation.
BIO: Juan Sonoda is the Legal Practice Director of the firm, and also the partner in charge of the Litigation and Energy & Natural Resources departments. His expertise focuses on the areas of foreign investment, international business transactions, energy and natural resources. He has represented parties in arbitrations conducted under the rules of the ICSID and he has assisted several energy and infrastructure companies in important and complex commercial litigations.
He has published several articles on natural resources and he directed and co-authored a book on indigenous rights in South America from the perspective of the natural resources industry, published by the Rocky Mountain Mineral Law Foundation.
He graduated cum laude at the University of Buenos Aires, School of Law, and holds a Master in Corporate Law from the New York University School of Law.
This is a summary of Chapter One corresponding to Argentina of the Book Indigenous Rights in South America - FPIC and Other Key Issues for Natural Resource Developments, Ed. Rocky Mountain Mineral Law Foundation, U.S. A. Colorado, 2016.
I. Is there a definition of indigenous people? And are mixed heritage communities or other traditional communities included in the definition?
The definition of indigenous peoples under Argentine Law has been construed in the context of concepts such as self-identification, ethnicity, cultural pre-existence and historical continuity with pre-colonial or pre-settler societies.
Article 75.17 of the Argentine Constitution sets out distinguishing characteristics of indigenous people:
[The Federal] Congress is empowered:
To recognize the ethnic and cultural pre-existence of indigenous peoples of Argentina.
To guarantee respect for the identity and the right to bilingual and intercultural education; to recognize the legal capacity of their communities, and the community possession and ownership of the lands they traditionally occupy; and to regulate the granting of other lands adequate and sufficient for human development; none of them
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shall be sold, transmitted or subject to liens or attachments. To guarantee their participation in issues related to their natural resources and in other interests affecting them. The provinces may jointly exercise these powers.1
Article 75. 17 highlights two principal elements:
A) Ethnicity: It is the common identity of a group of people with shared cultural practices, religion, language and territory that differentiate them from other groups. Ethnicity is inextricably linked to the notion of self-identification.2
B) Culture: values and practices shared by communities pre-existing Spanish colonization, and passed on from generation to generation.
In Confederación Indígena del Neuquén v. Provincia de Neuquén,3 the Argentine Supreme Court established a test to identify indigenous groups, consisting of an objective and a subjective factor. The objective factor is continuity in time--based on Article 75.17 a historical fact that is continues to the present. The subjective one is the group's self-awareness of its indigenous identity.4
In Sede Alfredo et al. v. Vila Herminia et al.,5 First Instance Court No. 5 of Rio Negro on Civil, Commercial and Mining ruled on the self-identification element as a criterion for belonging to an indigenous community:
A definition of indigenous peoples must include, in the broadest possible way, all aspects that the indigenous peoples consider to be fundamental to their identity, and in this regard, the element of self-identification is the starting point for that definition. Using this criterion one is able to formulate a definition that respects the ideas, beliefs, traditions, and other aspects that the indigenous peoples consider necessary to be able to exercise their rights [...].
National Law No. 23302 (Ley sobre Política Indígena y apoyo a las Comunidades Aborígenes, or "Indigenous Policy Act")6 provides the following definition on an indigenous community,
The group of families that recognizes themselves as an indigenous community will be considered as such because they are descended from the populations that inhabited the country at the time of the conquest or colonization.
Provinces of Santa Fe, Catamarca, San Juan, Mendoza, La Pampa, Buenos Aires, Neuquén, Rio Negro, Chubut, Santa Cruz, and Tierra del Fuego, Ciudad de Buenos Aires, Chaco, Tucumán, Salta, Córdoba, and Entre Ríos incorporated the Act into their local laws and consequently adhere to the same notion of indigenous communities.
Other provinces have their own legal definitions and some of the common traits among those include,
▪ They are groups of families that self-identify as being indigenous. 7
▪ They have their own identity, distinctive cultural traditions and social organization. 8
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▪ They have, or had, their own land and territory. 9
II. Are indigenous or traditional communities' rights protected by supranational, national or sub-national norms? Has any part of the legislation been implemented with the purpose of conforming to ILO 169? Have any rights been recognized by the courts which potentially expand the laws on the topic?
Indigenous communities' rights in Argentina are protected by supranational, national, and sub-national or provincial laws. Since Argentina has a federal system of government, multiple regulatory frameworks coexist.
1. National Constitution
Article 75.17 of the Argentine Constitution recognizes indigenous communities the rights that will be described below in this chapter.
Argentina's Federal Supreme Court ruled that rights in Article 75.17 are self-executing, and not dependent upon the issuance of implementing laws by the Federal Congress.10
a. Recognition and respect of the indigenous communities' identity
Respect for cultural identity has been defined "as the right to equal treatment without loss or surrender of identity or, if one prefers, the right to be different but equal."11
It should be noted that the Argentine state has an international responsibility regarding the protection of the social and cultural identity of the indigenous communities. As stated under Article 2 of the "Convention concerning Indigenous and Tribal Peoples in Independent Countries" (ILO Convention No. 169, hereinafter "ILO 169"), "Governments shall have the responsibility for developing (...) coordinated and systematic action to protect the rights of these peoples and to guarantee respect to their integrity".12
b. Recognition and respect of bilingual and intercultural education
The Government is obliged to provide indigenous communities access to bilingual education, which teaches their knowledge, value systems, culture, and includes their participation in designing and implementing it.
Some examples of this are the National Intercultural Bilingual Education Program,13 aiming to structure educational policies that address cultural diversity in society and Law No. 5598, of the province of Corrientes, including Guaran? as an official alternative language. Also, Law No. 6604 from Chaco declares indigenous languages Qom, Moqoit and Wichi as official languages of the province, apart from Spanish.
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c. Recognition of communities as legal entities
Communities are considered legal entities and are entitled to make specific claims in defense of their land and natural resources, as well as other rights such as the protection of their cultures, customs and languages.
In Confederación Indígena del Neuquén v. Province of Neuquén, the Argentine Supreme Court stated:
The recognition of legal status is a requirement for the indigenous people in order to appear in court, as well as to have access to social benefits. After the amendment of the national constitution that took place in 1994, the Argentine state recognized indigenous...
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