Indigenous Land Rights in Argentina Under Fire: The Significance of the Mendoza Resolution at Domestic and International

[Judi Lynn]

Indigenous Land Rights in Argentina Under Fire: The Significance of the Mendoza Resolution at Domestic and International Law (Part II)



28.06.24 | 0 Comments

[Dr Shea Elizabeth Esterling is a Senior Lecturer Above the Bar in the Faculty of Law, University of Canterbury (Christchurch, Aotearoa New Zealand), Co-Chair of the American Society of International Law Rights of Indigenous Peoples Interest Group (2021-24) and Chair of the Cultural Heritage and the Arts Interest Group (2024-27). She is the author of Indigenous Cultural Property and International Law: Restitution, Rights and Wrongs (Oxon: Routledge 2024).]

28.06.24 | 0 Comments
[Dr Shea Elizabeth Esterling is a Senior Lecturer Above the Bar in the Faculty of Law, University of Canterbury (Christchurch, Aotearoa New Zealand), Co-Chair of the American Society of International Law Rights of Indigenous Peoples Interest Group (2021-24) and Chair of the Cultural Heritage and the Arts Interest Group (2024-27). She is the author of Indigenous Cultural Property and International Law: Restitution, Rights and Wrongs (Oxon: Routledge 2024).]


Introduction: The Mendoza Resolution and International Law

Set amid the struggle for indigenous ownership of ancestral lands in Argentina, this series examines the resolution adopted by the Chamber of Deputies of the Province of Mendoza on 23 March 2023, which asserts that the Mapuche peoples should not be considered Argentine Indigenous Peoples. Specifically, it offers that “[o]n the basis of scientific, historical, anthropological contributions made at the time of [the resolution’s] treatment in a commission by specialists in the Indigenous issue, that Mapuches should not be considered Indigenous people of Argentina in the terms of […] the National Constitution and International Treaties.” Part I in this series analyses the Mendoza resolution through the lens of the challenge of reconciling historical injustices and the claims of Indigenous Peoples within the contemporary Argentine legal system highlighting the challenges in relation to the implementation of indigenous rights within Argentina. It ultimately demonstrates at the crux of these challenges are the complexities of Argentina’s federal system and the lack of political will to implement indigenous rights. Yet, the Mendoza resolution also sheds light on matters that reach beyond Argentina’s [colonial] borders. To flesh out these matters, this second instalment analyses the Mendoza resolution through the lens of the challenge of reconciling historical injustices and the claims of Indigenous Peoples under international law drawing out its implications particularly in relation to indigenous rights to recognition and land. In turn, this analysis contextualizes the global nature of the indigenous struggle for justice and makes manifest that the historical claims of Indigenous Peoples and the implementation of indigenous rights are ultimately complicated by the interplay between domestic and international law.

The Mendoza Resolution: International Context

To fully understand the Mendoza resolution, it also needs to be examined in light of the broader international context of the indigenous struggle for justice. Flowing from this struggle, is a well-established body of international law pertinent to the promotion and protection of indigenous rights. Consequently, states have sought to reject or at least tightly prescribe indigeneity as a way to deny rights to indigenous individuals and communities including through the guise of the protection of cultural identity and integrity (for example Lovelace v. Canada). Common state strategies here centre on exclusionary practices surrounding recognition including rejection of indigenous self-identification as well as the denial of citizenship, nationality and residence to Indigenous Peoples. It is here within exclusionary practices that the Mendoza Resolution sits. Specifically, advocates of the resolution seize on national origin as an exclusionary criterion asserting that the Mapuche are not indigenous to Argentina but rather are “native to the Chilean Araucanía [region]”. The aim of this exclusion is to restrict access to the protections afforded to Indigenous Peoples under the Argentine constitution and international law. The Mendoza resolution provides that “Mapuches should not be considered Indigenous people of Argentina in the terms of […] the National Constitution and International Treaties” etc.(emphasis added). Aside from international law, as noted in the first instalment of this series, the 1994 reform of the Argentine Constitution also secures indigenous rights. It empowers Congress “to recognize … 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…” (Art. 75(17)). In taking this exclusionary approach, the Mendoza resolution is out of step with both burgeoning indigenous-specific jurisprudence in international law as related to nationality as well as entrenched international and regional indigenous and human rights.

Regarding indigenous-specific jurisprudence, in Desautel v Canada, the Canadian Supreme Court found that a non-citizen indigenous man was entitled to exercise constitutionally protected traditional hunting and fishing rights on the traditional lands of his ancestors in British Columbia. Desautel, a member of the Lake Tribe in Washington State and a U.S. citizen and resident, was entitled to exercise these constitutionally protected aboriginal rights as a result of his ancestral ties to the Sinixt peoples, a pre-contact Indigenous Peoples whose traditional territory is arbitrarily divided by the Canadian-US border. The key factor in the ruling was that the court interpreted the expression “aboriginal peoples of Canada” in the Canadian Constitutional Act to include the successors of pre-contact indigenous societies that occupied current Canadian territory at the time of European conquest. Ultimately, the judgment provides that non-citizens and non-residents can claim aboriginal rights under the Canadian Constitution. In effect, indigenous rights including constitutional rights are owed to Indigenous Peoples outside of the sovereign state in certain instances; in this case where there is a spiritual connection to the lands, which, as the court emphasises, can survive contact and material dispossession. By extrapolation, constitutional protections for Indigenous Peoples are not dependent on state sanctioned recognition in any of its myriad forms including nationality, citizenship, residency etc. In turn, this judgment undercuts the exclusionary practices of states as a core facet of sovereignty. Indeed, in granting Desautel and the Lake Tribe constitutional rights, the Crown argued that this was incompatible with Canadian sovereignty. Yet, the Supreme Court reasoned that this purposive interpretation is necessary as it “serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty”. The Court noted that if such an interpretation was not taken, excluding Aboriginal peoples who were displaced from Canada, that this would risk perpetuating “the historical injustice suffered by Aboriginal peoples….” In turn, Desautel suggests within the context of reconciling historical injustices and the claims of Indigenous Peoples that recognition is a political act that distracts from the real challenges of the implementation of indigenous rights. Rather, whether than considering if the Mapuche of Mendoza are indigenous to Argentina or Chile, the implementation of indigenous rights within the contemporary Argentine legal system requires a purposive approach to balancing the imperatives of state sovereignty with indigenous customs, cultures, and laws.

Moreover, the exclusionary approach based on national origin promulgated by the Mendoza resolution is out of step with established international law in that it restricts definition of Indigenous Peoples and violates the prohibition against discrimination. As regards indigenous rights, neither International Labour Organization (ILO) Convention No. 169 nor the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) refer to the national origins of Indigenous Peoples. It is not used as a criterion of exclusion or obstacle to access provisions. Indeed, indigenous rights make clear that Indigenous Peoples are indigenous regardless of their legal status (ILO Convention No.169, Art. 1(b)) and rather contemporary emphasis in relation to defining indigeneity is placed on self-identification (ILO Convention No.169, Art. 1(2); UNDRIP, Art. 33). Further any such practice of exclusion based on national origin violates the norm of non-discrimination, which along with equality underpins all human rights at both the regional and domestic levels (American Convention on Human Rights, Arts. 1 & 24; UDHR, Art. 7; International Covenant on Civil and Political Rights, Arts. 2.1 & 26; International Covenant on Economic, Social and Cultural Rights, Art. 2.2; International Convention on the Elimination of all forms of Racial Discrimination, Art. 5). Further, the prohibition of discrimination is a peremptory norm of international law, which renders it a norm from which no derogation is permitted, and therefore any distinction based on national origin like the Mendoza resolution would necessarily constitute a discriminatory act.

More:
https://opiniojuris.org/2024/06/28/indigenous-land-rights-in-argentina-under-fire-the-significance-of-the-mendoza-resolution-at-domestic-and-international-law-2/