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Chile's democratic deficit in relations with Indigenous Peoples

By Anita Perricone

Bolzano/Bozen, September 2011


This article reviews the current situation of indigenous peoples in Chile, two years after the entry into force of ILO Convention No 169. Through six hypotheses, an attempt to explain the existence of a democratic deficit in the relationship between the Chilean State and indigenous peoples is made. Such a deficit was recently diagnosed by the international monitoring system, but is rooted in the transition to a poorly plural democracy. The clash between the developments made on indigenous rights in international law and the instruments created to apply such standards in national law is analyzed, as well as the application of international standards by national Courts. Finally, the public opinion's perception of the state of advancement of indigenous rights in Chile is commented, while speculations on future developments are made in conclusion.

Mapuche activists protest during a Process in front of Tribunal of Victoria, Chile. Foto: Massimo Falqui Massidda. Mapuche activists protest during a Process in front of Tribunal of Victoria, Chile. Photo: Massimo Falqui Massidda.

Chile is, generally, considered "a good student, in the messy classroom that is Latin America" ( 1 ). It shifted from the longest dictatorship in Latin-America (1973-1989) to a stable democracy, while maintaining a fast-growing economy along more than two decades, which allowed governments to effectively fight poverty. Moreover, Chile has signed many free trade agreements and has recently entered the OECD group of developed countries (December 2009), being the first South-American country to do so. While even the atrocities committed under Pinochet's dictatorship have finally been recognized, there's still one problematic national reality that obscures the goals reached by democratic governments: it is the State's relationship to indigenous peoples, which remains an extremely delicate and still unresolved issue.

Chile's performance in the implementation of international treaties on indigenous rights has been seriously insufficient. This is demonstrated by the recent call for a new country report, to be submitted by the government to the International Labor Office within September 2011. Implementation procedures of the different international obligations derived from international documents on indigenous rights (especially from ILO Convention 169 and the UN Declaration on the Rights of Indigenous Peoples) at national level were not applied in good faith. What are the reasons of the country's difficulties in applying indigenous rights? Is it just a lack of political will, or are these difficulties due to a more general problem that is affecting Chile's democracy?

Chile still seems "immature" to be able to duly and fully apply indigenous rights. Its young democracy may be passing through a difficult phase, similar to adolescence and characterized by acute rebel tendencies. The next few paragraphs contain six hypotheses, which will help reconstructing the range of possible reasons that contributed to Chile's failure to comply with the obligations taken under international law. Through these hypotheses I will attempt to describe the "pluralism deficit" that, notwithstanding the good reputation of the Chilean democratic system, is to be observed in the country's relationship with indigenous peoples.


The problem of the implementation of international human rights goes to the very nature of international law, a consensual arrangement based on reciprocity, which realization requires cooperation from politicians. "The report system is the prevalent system for overseeing the realization of human rights in Contracting States. For many, this is cited as a reason why human rights, indeed even international law, lack teeth. However, the benefit of the system lies in publicity: many States are reluctant to be identified as an example of bad practice on the international arena." ( 2 )

According to Article 22 of the ILO Constitution, a State party to an ILO Convention shall submit reports to the International Labor Office on the implementation of the provisions of that Convention. An initial report shall be submitted after one year from ratification, and then present periodical reports (every five years), unless the Committee requests the submission of additional reports in certain situations. The Committee of Experts on the Application of Conventions and Recommendations (CEACR), the main supervisory body of the organization, analyzes the reports submitted by States. Every year, the Committee issues an Annual Report with observations on the application of ILO Conventions by State-Parties.

No proper sanctions are foreseen for States' failure to comply with international human rights treaties as is ILO Convention 169. The Annual Report, together with representations by workers' and employers' organizations to the International Labor Office and State complaints of non-observance (Articles 24 and 26 of the ILO Constitution, respectively), are the only "soft sanctions" applicable to States that do not apply the Convention's provisions. However, as the Chilean case demonstrates, the power of publicity and of that set of values on which the international system is based (centered on good faith), resides in the creation of a system of "checks and balances" through which the supervisory bodies of international organizations check the States' compliance, and publish the results of their supervisory action.

The fact that Chile has been called to repeat its exam before the Committee of Experts in 2011 is a clear message that its application of ILO Convention 169 has been insufficient, and clearly unmasks the lack of political will to comply with international standards on indigenous peoples' rights and, as I suggest, a deeper problem of the young Chilean democracy.


The paradox of the Chilean democratic transition consists in the engagement with democratic institutions (since 1990) while maintaining an insufficient degree of pluralism, as well as ineffective channels for participation of certain social sectors.

While, during the dictatorship, the Mapuche were an oppressed social group among others, the democratic transition seemed to imply the opening of a new era in relations between indigenous peoples and the State. The Agreement of Nueva Imperial (1989), in which the left-wing candidate to the Presidency and future President Patricio Aylwin promised to amend the Chilean Constitution for adding a recognition of indigenous peoples' rights, to ratify ILO Convention 169, to create a Special Commission for the elaboration of an Indigenous Law and to create a special body for indigenous peoples' representation within the State (the future National Corporation for Indigenous Development, CONADI), created many hopes and expectations. However, the Agreement revealed to be more functional to electoral propaganda than to the substantial improvement of indigenous peoples' situation.

Although the creation of the Indigenous Law No 19.253 (1993), whose provisions were supposedly inspired by the adoption of ILO Convention 169, was initially regarded as a great success for the renewal of relations between the State and indigenous peoples, its application revealed the Law's weaknesses, starting to generate frustration since its early years. Especially the insufficient effectiveness of the provisions on political and participation rights, and of those concerning land and control over natural resources, generated indigenous peoples' dissatisfaction and frustration with the Law. Such sentiments, increased by the State's insistence in marginalizing its native peoples, lead to the breakout of a new kind of social protest related to indigenous claims. ( 3 )

The Chilean democratic transition created a weak democracy, characterized by a lack of pluralism. Democracy should not just imply elections, but also an adequate level of pluralism in order, at least, to allow indigenous peoples' aspirations to intervene and participate in the democratic decision-making process. Instead, Chile is nowadays characterized by a class of political elites, cut off from citizenry in practice, which renders the whole political life an empty process.

In other words, representation of indigenous peoples did not find a place within the process of transition to democracy initiated by Chile in 1989. Given the fact that real pluralism is still an underdeveloped aspect of the Chilean political life, it could be affirmed that, due to democratic immaturity, rather than just political unwillingness, the country's democracy is not capable of applying indigenous rights appropriately.


The last decades have seen the making of a series of efforts, at the international level, towards the reestablishment of indigenous peoples' dignity and equality with respect to the rest of society. These efforts started mainly within two different forums: the United Nations Organization (UNO) and the International Labor Organization (ILO). Within the former, there was a shift from individual to collective rights, which was mediated by the insertion of the right to self-determination in Article 1 common to the International Covenants of 1966, the one on political and civil rights and the other on economic, social and cultural rights. UN bodies and forums initially lacked participative instances open to indigenous peoples' representatives. This changed with the establishment of the Working Group on Indigenous Peoples (WGIP), which became the largest UN forum ever, at least before the creation of the Permanent Forum on Indigenous Issues in 2000. Within the ILO, a shift from an integrative approach (clearly reflected in Convention No 107) to a more participative approach (reflected in ILO Convention No 169) was pushed through. While indigenous "populations" are the subject of the former Convention, indigenous "peoples" are the protagonists in the latter. The insertion of this term was crucial, since it recalls the exercise of the right of self-determination. ( 4 )

These changes in focus, however, could not be easily transposed to the national level in the Chilean case. Here, indigenous peoples' participation within a pluralistic democracy is still far from becoming reality. The long path towards the ratification of ILO Convention 169, which was marked by various attempts to challenge the instrument's constitutionality (two controls of constitutionality by the Constitutional Court and one interpretative declaration), is just one sign of the reluctance with which the Chilean institutionalism adopted, after twenty years of debate, the most advanced binging instrument on indigenous peoples' rights. The reticence in amending the constitutional text in favor of the insertion of the recognition of indigenous peoples and their rights is another important message about the "Chilean way" to deal with the indigenous peoples living within its borders.

The violation of numerous individual rights at national level, moreover, adds to this reticence to recognize collective rights, epitomized by the refusal of the term "peoples" both in the Indigenous Law of 1993 ( 5 ) and in the recognition of rights enshrined by the latest draft of the still pending constitutional reform (2009). Among the most evident violations of individual human rights there is that of equality before the law, especially in the case of the Mapuche leaders prosecuted under the Anti-Terrorist Law No 18.314 of 1984. Prosecution of these individuals under this regulation constitutes a blatant violation of the right to equality before the law, especially since it is applied in a discriminatory way against the Mapuche, and since this law should have been modified, or better abrogated, a long time ago.

Clearly, there is a tension between the effort made by international organizations for reestablishing the position of the excluded and the national state of things that, notwithstanding the passing of two decades since the end of the dictatorship, has not established an adequate level of pluralism. The contrast between (international) theory and (national) practice is particularly evident in the case of the rights of consultation and participation. The standards established by international law seem to be too grandiose for being applied in reality, at least in Chile. Here, Decree No 124 of the Ministry of Planning transposed the duty to consult into the national system, resulting in a serious distortion of the scope of this fundamental duty. ( 6 )

On the one hand, we may think that, as long as individual rights (such as equality before the law and non-discrimination) are not granted at national level, it is too early even to attempt the application of collective guarantees (like land and participation rights) to relations between the Chilean State and the indigenous peoples inhabiting its territory. However, bearing in mind that human rights are universal, indivisible and interconnected, the correct thinking should be that overcoming individual rights' violations is as important as applying the newest collective rights formulations (such as the right to collective land ownership, established by the Inter-American Court in the Awas Tingni case, 2001). This is even more important in the case of indigenous peoples, since the right to collective land ownership bridges the realization of a full range of other fundamental rights for these peoples (the right to dignity, cultural survival, economic, social and cultural rights etc.).


The prescriptions of international law, when entering the Chilean legal order, also clash with the "deregulation" that characterizes Chile's neo-liberal economic model, forcefully implanted in the country during Pinochet's military government. Indigenous peoples' rights represent an obstacle to the expansion of this model, which is based upon the exploitation of the natural resources present, in abundant quantities, on indigenous territories in Northern and Southern Chile. Mining is pushing for expanding in the next decades, against the will and in violation of the indigenous rights of the Aymara people (indigenous inhabitants of Northern Chile), while forestry enterprises, fishery and hydroelectric plants have proliferated in the last few decades in the South of the country, in violation of the rights to land and control over natural resources of the Mapuche people.

Social conflict has been rendered particularly acute by the presence of a small group of very rich and influential business families, which control the exploitation of Chile's natural resources: the Falabella and the Luksic groups control enormous sums of capital in mining, while the Matte and Angelini families are deeply involved in the forest and cellulose industries and, to a certain degree, in the energy sector. These families form an economic elite, which is very influential in the State's political realm. Economic power has allowed them to exert their influence on political parties, as well as to influence the decision-making process.

In a range of cases, however, international law has had a considerable impact on national jurisprudence, especially in those cases judged by Chilean regional Courts of Appeal. ILO Convention 169 has been successfully applied in particular by the Courts of Appeal of Southern Chile (sitting in the cities of Concepciòn, Temuco, Valdivia and Puerto Montt), which are more sensitive to the indigenous question, since the rural Mapuche population (more than half - around 60% - of the total population migrated to the capital city of Santiago de Chile) is mainly concentrated in that provinces. Some cases judged by these Courts have been great successes for indigenous peoples, especially with respect to the State's duty to consult them, as established by international standards, in cases related to indigenous rights to natural resources, territorial rights and investment projects developed on Mapuche land. Only in three cases did the Courts of Appeal judge against the interests of indigenous peoples.

In front of the Supreme Court, however, the situation has been less favorable to indigenous peoples than at the lower judicial level. It could be affirmed that the Supreme Court, which is supposed to be the independent judicial body per excellence, has shown a serious problem of "jurisprudential schizophrenia". ( 7 ) The "Palguin" case (June 2010), in which the Court reverted the judgment of the Court of Appeal of Temuco (January 2010), although the latter judgment was perfectly in accordance with international standards on indigenous rights, is the most striking case. The "Celco" case, another key judgment on the right to be consulted, was closed in December 2010 by a decision of the Supreme Court to confirm the judgment issued by the Court of Appeal of Valdivia (June 2010), already not favorable to indigenous peoples. It is possible to argue that these judgments of the Supreme Court have had, and will possibly have, an effect on the latest (the case of the Cayucupil hydroelectric plant and the case of the Airport of Temuco of January 2011) and future judgments of the Courts of Appeal. Such an incoherent approach of the Supreme Court does certainly not constitute a guideline, nor an encouraging conduct for the work of the lower Courts.


The Chilean legal and political system is not (yet) an encouraging environment for the recognition and realization of indigenous rights. Indigenous rights standards elaborated at the international level have encountered numerous obstacles throughout the three branches of government. This meant real difficulties for those rights in penetrating the Chilean institutions and in benefiting the indigenous peoples inhabiting this country.

There is first an overarching and symbolic problem: the missing constitutional recognition of indigenous peoples and their rights in the Constitutional text, since the Agreement of Nueva Imperial (1989). At this point of the story, however, many indigenous representatives and organizations argue that they prefer the lack of constitutional recognition, rather than the adoption of a draft that was not consulted with indigenous peoples and which only contains a partial, distorted recognition of indigenous rights. A recognition of this kind would certainly constitute a locking-up of indigenous peoples' rights, an obstacle to the struggle of future generations for the genuine recognition of their indigenous rights. Given the difficulty to reach a consensus and to adopt a satisfactory amendment for all parts, the debate on the constitutional reform has lately been put aside, even if the government returns on it occasionally (just to show that it is still concerned with indigenous issues).

Further analyzing the legislative level, it may be affirmed that the main instruments adopted in order to apply international law provisions, both the Indigenous Law No 19.253 (1993) and Decree No 124 on the regulation of the duty to consult (2009), have constituted a distortion of the rights established by ILO Convention 169.

At level of the executive power, the most evident limitation of the Chilean institutionalism is certainly the unwillingness, more than the incapacity, demonstrated in applying the duty to consult with indigenous peoples. This unwillingness is clearly visible in the curtailment of the scope of this duty in Decree No 124, which regulates consultation within the national legal order, especially with relation to administrative measures. The Decree excludes from that duty the main public organs which deal with indigenous issues (Municipalities and public enterprises, among others); it also excludes investment projects, which are among the initiatives that cause the fiercest opposition among the inhabitants of indigenous territories. Consultation in these cases is considered "optional", while the duty is discharged onto sectoral regulations, such as the system of environmental impact evaluation (Sistema de Evaluaciòn de Impacto Ambiental, SEIA).

Other limitations encountered at the executive level are linked to the weak and improper protection regime in the field of land rights by the Fund for Indigenous Lands and Waters (Fundo de Tierras y Aguas Indìgenas, FTAI), among others.

At the judicial level, serious obstacles have been encountered in the protection of the rights of indigenous individuals, especially the right to equality before the law and non-discrimination. The application of the Anti-terrorist law has been the most evident problem in the different treatment given to the Mapuche before national courts. The application of this law to Mapuche leaders accused of minor crimes, such as arson, has opened the way to a process of criminalization of the Mapuche people, exacerbating the discriminatory treatment given to them on base of ethnic reasons. Such treatment includes the application of preventive prison, double prosecution of the accused both by civil and military tribunals, as well as their conviction with more serious penalties than under the current penal code.


An important sector of the Chilean society is profoundly confused vis-a-vis the conflict between the State and the Mapuche. It is arguable that this reaction, a sort of alienation, is linked to the problematic, kind of traumatic relationship of the Chileans to their identity and historical origin. In general, there is a much better knowledge of the Mapuche cause for indigenous rights, and of the real conditions in which this people lives, in the South of the country, especially in the VIII, IX and X Regions, where the majority of indigenous rural population is concentrated. The fact that the non-indigenous population of Southern Chile has a better understanding of the Mapuche question is reflected in the support given by Courts of Appeal of the cities located in that part of the country (Concepciòn, Temuco, Validivia and Puerto Montt).

Why is the most part of the Chilean society so alienated before the conflict involving the Mapuche, the State and enterprises exploiting natural resources? There are many social and cultural reasons that influence this tendency. First of all, it should not be forgotten that Chile came out of the longest and most cruel dictatorship in Latin America, which exacerbated the nationalist discourse. Secondly, the media has played a particularly important role in influencing public opinion on the issue: media reports of violent indigenous attacks on land property and other goods (wood, houses and cabins), "have alienated the non-indigenous Chilean population", confusing their minds on the plight of the Mapuche and other indigenous cultures, "creating a cultural gap that may soon be too wide to breach." ( 8 ) In particular, the media has inculcated the idea of the "Mapuche conflict", forgetting that every conflict always involves more than just one part.


Cleavages of a social, economic and cultural character still profoundly divide the Chilean society. In divided and heterogeneous societies like Chile, nationalism plays an important role; here, the nationalist discourse was (and still is) used by politicians to create unity out of diversity, thorough uniformity. Clearly, the result of such an attempt is a mere illusion. Until the Chilean State does not stop looking at diversity as a problem, instead as an immense resource for a country, conflicts with the Mapuche people will not come to an end.

The members of the most politically active sector of the Mapuche society do not resign to consider themselves Chileans. Many of them did never feel Chileans, and won't feel as such until they are adequately taken into consideration in decision-making processes, treated as citizens that have the same rights and dignity of the rest before the Courts, and their collective rights as members of an indigenous people are duly recognized and granted respect.

For a number of reasons, international instruments ratified by Chile did not produce the hoped results. It may be argued that the country's governments are still unwilling to allow the preservation and protection of diversities, and that its masses do not support the cause for indigenous rights, in favor of numerically significant sectors of their own society, in a sufficiently massive way yet.

Notwithstanding the "immaturity" of the Chilean democracy, some movements in favor of the rights of the Mapuche flourished lately, especially among the younger generations. Young people, indigenous as well as non-indigenous, are increasingly concerned with the Mapuche struggle for indigenous rights. This happened because the Mapuche youth had increased access to higher education, and because indigenous as well as non-indigenous youth is increasingly influenced by international tendencies, while contacts with civil society movements abroad have become more frequent.

Currently, the situation shows the existence of a "double standard". On the one hand, the government showed its will to ensure indigenous rights to the peoples living within its border, clearly by ratifying ILO Convention No 169 (2008) and by voting in favor of the UN Declaration on Indigenous Rights (2007). On the other, instead of transposing international instruments in good faith, it changed the rules of the game: the content of those instruments was made void, while the State kept insisting on the perpetration of assimilation, discrimination, exclusion and inequality.

The blossoming of massive movements, all along 2011, suggests that important changes are coming over. Protests against the Hidroaysén project and in favor of the preservation of Patagonia from the construction of five mega-dams for hydroelectric exploitation, and innumerable demonstrations against profit in education and in favor of the free and public education may be anticipating an "awakening" of the Chilean democracy. Such awakening is certainly susceptible to influence indigenous peoples' situation positively.

NOTES [ top ]

(1) Jorge Contesse S., "The rebel democracy: a look into the relationship between the Mapuche and the Chilean State", 26 Chicano-Latino L. Rev 2006: 131.
(2) Rhona K.M. Smith, "Textbook on international human rights", 4th edition. Oxford University Press (2010): 150.
(3) Jorge Contesse S., Op.cit.: 135.
(4) This concept refers to the right of the peoples to freely choose their form of government and governors, as well as the priorities of their economic, social and cultural development. For a deeper insight see Anaya, James, "Self-determination. A Foundational Principle", en "Indigenous Peoples in International Law", Oxford University Press (1996).
(5) Article 1 of the Indigenous Law does not contain the term "indigenous peoples"; it rather uses the expressions "human groups" and "ethnic groups".
(6) Articles 6 and 7 of ILO Convention 169 contain the right to be consulted and the right to political participation, respectively.
(7) Alexandra Tomaselli, "Reformas Legales y derechos indigenas en Chile. Què tal estamos con el Convenio 169 OIT?". Paper presented at the XIV Meeting of Spanish Latin-americanists, Santiago de Compostela 15-18 September 2010, kindly provided by the author (atomaselli@eurac.edu).
(8) Alexandra Tomaselli, "The Mapuche Resolve", published on Academia 47 (2008): 14. Available online at: http://webfolder.eurac.edu/EURAC/Publications/Academia/ACADEMIA-online/ACADEMIA-47/Academia-47.pdf


- Anaya, James, "Self-determination. Foundational Principle", en "Indigenous Peoples in International Law", Oxford University Press, Oxford, 1996.
- Clavero, Bartolomè, "Reconocimiento Mapu-Che de Chile: Tratado ante Constituciòn", in "Geografía Jurídica de América Latina: Pueblos Indígenas entre Constituciones Ladinas": www.derecho.us.es/clavero/geografia.pdf
- Smith, Rhona K.M., "Textbook on international human rights", Oxford University Press, Oxford, 4. Ed., 2010.
- Willemsen Dìaz, Augusto, "How Indigenous Peoples' Rights Reached the UN". In "Making the Declaration Work", published by Claire Charters and Rodolfo Stavenhagen, 2010: www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/Books/Making the Declaration Work.pdf

- Contesse S., Jorge, "The rebel democracy: a look into the relationship between the Mapuche and the Chilean State", 26 Chicano-Latino L. Rev, 2006.
- Tomaselli, Alexandra, "The Mapuche Resolve", publicado en Academia 47 (2008): 14. Available online at: http://webfolder.eurac.edu/EURAC/Publications/Academia/ACADEMIA-online/ACADEMIA-47/Academia-47.pdf

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