THE MAPUCHE

THE MAPUCHE-PEHUENCHE AND THE RALCO DAM ON THE BIOBIO RIVER: THE DIFFICULT PROTECTION OF INDIGENOUS PEOPLES' RIGHT TO (THEIR) LAND

Lorenzo Nesti

Index: 1. Introduction. -2. The Mapuche people, culture and history. -3. The case of the dams on the Biobío river. -4. Possible legal resorts for the Mapuche-Pehuenche at the international level. -5. Obstacles and possible solutions. -6. Conclusion.

The topic dealt with in this article is the "struggle" of many indigenous peoples to preserve their land and environment and the need to give them a legal instrument (or improve the existing ones) to enhance their rights to an effective and culturally appropriate participation and to free and informed consent when their land and existence is involved.

"Oil and gas exploration and exploitation, geothermal energy development, mining, dam construction, logging, agriculture, ranching and other forms of economic activity in the national interest, have adversely impacted both indigenous peoples who have already suffered from contact and colonialism, as well as indigenous peoples in areas long isolated by distance and geography. Often, development takes place without indigenous peoples’ consent, consultation, participation, benefit, etc.".[1]

The case chosen to analyse these concepts is the one of the Mapuche-Pehuenche and the building of different dams on the Biobío river, in Chile. This case can also exemplify very well the need of assigning and strengthen human rights responsibilities to non-State actors, as private companies (TNCs) and lending agencies.

The study of the case will try to demonstrate that the protection of indigenous peoples’ rights to preserve their land and environment has to start from the recognition of indigenous peoples’ specific relation with their land. The cultural and spiritual value that land assumes in indigenous peoples’ life should be at the basis of the recognition of indigenous peoples collective rights to effective participation and to free and informed consent to every project or decision affecting them.

Mapuche means ‘people of the land’ (Mapu = land, che = people). The Mapuche are also known as ‘Araucanos’, the name given to them by the Spanish colonists. They were the original inhabitants of the Southern Cone of the South-American Continent, a region that covers half of Chile and half of Argentina today. Now they are concentrated in the provinces of Arauco, Biobío, Malleco, Cautin, Valdivia, Osorno, Llanquilhue and Chiloe in Chile and Neuquen, Rio Negro, Buenos Aires and Santa Cruz in Argentina, but many have migrated to the main cities. The Mapuche account for nearly 1.2 million in Chile (10% of the total population) and 200 000 in Argentina, constituting the third largest indigenous people in South-America.

The Mapuche people are both sedentary and nomadic communities, carrying on very different activities including hunting and gathering, herding, farming and fishing. Their traditional organisation was based on the extended family structure, known as Lof, and under the authority of a chief called Lonko. The daily way of life of the community was regulated in the Ad-Mapu, a kind of code orally transmitted by the community wise-elders (Ulmen). The Ulmen were chosen to ensure that the communal law was respected and acceptable standards of behaviour by its members were maintained. They also acted for the prevention and resolution of internal disputes. The elders have retained their importance within the community. The highest authority in the community is the Lonko. A Council of Lonkos, comprised of representatives of all regions (Butanmapu) used to meet in times of war choosing a Toqui, as military leader in charge of the army, while the communities organised themselves in Ayllarehue (8 lonkos).

Their socio-cultural and political relations have always been shaped and complemented by their spirituality, their religious beliefs and the strong relationship between man, land and nature. The Mapuche are a deeply religious society[2]; their religious organisation is formed by the Machi as spiritual leader. The Machi have a deep knowledge of traditional medicine, which they use to purify persons sufffering from evil spirits by entering in trance during a rite called Machitun.

During this rite, the whole community is involved in the invocation of the God Ngenechen to help the Machi receive enough strength to enter the body of the sick, recognise the evil, and find the remedy. The purification results from the use of medical plants, chants and the communication of the Machi with ancestors represented by the rewe, a kind of totem which strengthens the link of the community to the land.

"En efecto, el suelo, la mapu significa para el mapuche la existencia de lo sobrenatural, significa la presencia del hombre inserto en el medio que le rodea. Constituye para ellos los espacios sagrados, el sitio propio donde se llevan a cabo los contratos y alianzas entre ngenechen y los mapuches. Podríamos asimilarlo a la definicíon de ‘ergo-endosistema’ en que las cualidades de la tierra le brindan beneficios al hombre y mujer y que por su parte, la tierra requiere de sus sacrificios. Esta ‘propiedad’, el suelo que representa el estado Mapuche, viene a ampliar sus dimensiones conceptuales a la tradición etnoliteraria que significa continuar la identidad como pueblo".[3]

The most solemn expression of their spirituality is the Nguillatun. This ceremony takes place in the Nguillantue, an area specifically allocated by the community. During the Nguillatun, Mapuche of all ages give thanks to Ngenechen for two or three days. The community, with the guide of the Machi, tries to strengthen the relations between the families in a collective act of renewing the past of the ancestors and of understanding the needs for the future. In this ceremony, the language is fundamental since it represents the land and spreads the vision that unifies the community.

That is why the language is called Mapudugun, the ‘language of the land’. It is supposed to emerge from the listening to the land and all the elements of nature: sounds of wind, rain, trees, movements and sounds of animals, colour of the mountains. Although this language is an oral one, some Mapuche organisations in Chile are working for the creation of an alphabet in order to preserve and sustain the oral tradition and to prevent its disappearance.

2.2. From colonisation to our days.

When the Spanish arrived to the Americas, the Mapuche people had different names according to the region, wallmapu, or a particular feature of the environment they were living in: Puelche (living in the land of the east), Pikunche (living in the land of the north), Lafquenche (living in the land of the Pacific coastal region in the west), Huilliche (living in the land of the south), Pehuenche (people of the pine nut tree, living beside the Biobío river)[4], Waidefche (people from the cordillera), Ranquilche (people from the apple tree region). The strategic border was the one in the north, with the Inca Empire, in correspondence with the Maule River, established after a long war. Before the colonialists (in Mapuche called huincas, literally ‘usurper’) arrived, the Mapuche had already developed a regional cultural diversity without centralised power and with distinct ways of life, and social organisations. Nevertheless, they maintained a strong sense of unity, mainly during the struggle, not to be defeated by the invaders.

The Mapuche, only indigenous people in Latin America, managed to resist to Spanish colonisation for three centuries though losing 2/3 of their territory. After they eventual 'pacification' in 1883 (due to the military joint effort of Argentina and Chile, both independent since the first half of 19^th century), the Mapuche were settled in reducciones, small reserves in most cases separated one from another by areas occupied by Chileans and European immigrants. This was done profiting of their lack of individual private property rights since this concept is not part of their culture[5]. The progressive division and alienation of Mapuche land was momentously stopped by the Popular Unity government of Salvador Allende, when the first law favourable to Mapuche in the history of Chile was issued and a Directorate of Indian Affairs was set up to promote the social and educational development of the communities.

All these gains were reversed by the new regime immediately after the coup of 1973. With the law 2568 of 1979 indigenous peoples were no longer defined in terms of different language or culture and provisions were made for the divisions of their lands at the request of one single person, not necessarily a Mapuche.

The victory of the opposition over the military regime in the 1988 Referendum resulted in the continuation of the transition process initially led by President Aylwin. A significant debate occurred with respect to the recognition of the various indigenous peoples living in Chilean territory (not only the Mapuche, but also Rapanui in the Eastern Isle, Aymaras in the north of Chile and Kawáskar and Yamana in the extreme south). In 1989, with the ‘Acuerdo de Nueva Imperial’, principles for mutual recognition and new relationships aimed at development were proposed. Those principles were enacted in Law n. 19.253, known as ‘Ley Indígena’, passed in October 1993. In 1994, different decrees established criteria for the recognition of indigenous people for the constitution of indigenous communities and the organisation and management of a Public Record of Indigenous Lands and Waters.

In the implementation of the ‘Ley Indígena’, three important measures were taken:

- the constitution of CONADI, the National Corporation for Indigenous Development, a decentralised public agency with its own legal personality and budget, dependent of the Ministry of Planification and Co-operation;

- the creation of CONADI Counsel, formed by 17 members, 8 elected by indigenous communities and 8 as ministerial representatives; the president of the Counsel is appointed by the President of the Republic. The 8 indigenous representatives are elected by the vote of 90.000 people and the participation of 2.600 communities. The democratic result of this consultation was obscured by the scarce attention to the different traditions of indigenous peoples where election practices are not diffused and therefore the peoples who voted did not reflect the structure of the community but were elected because they could speak Spanish. Moreover, this voting operation did not take into account the traditional Mapuche figure of the Lonko, who is a kind of ‘primus inter pares’ whose authority can be always questioned by the community if he does not represent the overall consensus within it;

- the constitution of a fund to finance projects for indigenous local development and the realisation of the Fund for Indigenous Lands and Waters, which permitted the assignment of 13.000 hectares of land in conflict to indigenous communities and another 33.000 hectares from the Ministry of National Properties.

The case examined here regards the building of two dams (of a series of six) in the area of the Upper Biobío, in Chile. The project has affected (in the case of the first dam, Pangue, already built) or threatens to affect (in the case of Ralco, under construction) the environment of the region, the land and the cultural survival of the Mapuche-Pehuenche people living in the area. This paragraph will also try to describe the role played by the various actors involved.

The Biobío is a very important river in Chile. It measures 400 km, and covers 25 millions hectares. Its origins are in the Lagoon of Icalma y Galletué (IX Region) and its end is near the town of Concepción, in the Arauco Gulf. The first part of its course, the Upper Biobío, is in the high canyons of the Andean Cordillera, while in the second part, the Lower Biobío, the river flows wider and quiet. This second part is heavily affected by chemical, wood and fishing industries and by the lack of cleaning-plants for residual waters coming from the surrounding towns and villages. This has also strongly affected the ecosystem of the Arauco Gulf. However, the Biobío provides drinking water for over a million people and important nutritive elements for the Gulf, still one of the most important fishing areas of Chile. The Upper Biobío is an area of enormous relevance for the diversity of flora and fauna since it supports a mix of species pertaining to the dry areas of the north and the humid areas of the south. According to the National Commission for Fauna, of the 243 species of vertebrates in danger of extinction living in Chile, 77 are in the Upper Biobío. There are also five volcanos in the area, three of which are active.

The Biobío river runs through the heart of the land of the Pehuenche. In Mapudungun (Mapuche language), Pehuenche means people (che) of the pine nut (pehuen). The pehuen is the fruit of Araucaria Araucana, a millenar pine tree which grows in the area of the Upper Biobío. The Pehuenche number nearly 10.000, divided into 4 communities, and occupy an area of nearly 30.000 hectares around the Callaqui volcano. They were initially distinguished from other Mapuche people by cultural, linguistic and physical aspects, but since the XVIII century, they have progressively become part of Mapuche culture and traditions. Since the last century, they have shared the same language (Mapudungun) and legally constitute the same ethnic group calling themselves Mapuche-Pehuenche or simply Pehuenche.

The Pehuenche economy rests upon unrestricted access to renewable natural resources: pine nuts, wood for building or fuel, pastures and gathering of forest products. Woodcutting provides an important source of income, but non-indigenous people often take advantage of Pehuenche isolation by paying for the timber at only half of the regional price. In the summer, Pehuenche families and their animals migrate to the high Andean veranadas (areas at 900 to 1.000 metres over the sea level) for their husbandry and the collection of the pehuen. During the rest of the year, these areas being covered with snow, they live in the invernadas (areas at 600 metres over the sea level), near the Biobío river. The pehuen is essential to both their material and their cultural and religious life. This nut is their primary source of nourishment. The Pehuenche obtain flour, milk and alcohol from it, and they consume it with bread and other food. They also use it also to feed their animals (sheep, goats, cattle, horses), and during the summer they collect a quantity sufficient for the whole year. With the pehuen they prepare the Mudai, a fermented drink that they use for religious ceremonies. The Araucaria and its fruits are important sacred elements in Pehuenche culture.

"A diferencia de los ngüillatunes Mapuche, las comunidades Pehuenche en el centro de su cancha, el rewe, colocan una plántula de Araucaria a la cuál le brindan agradecimiento. Esta actividad religiosa tiene los mismos fine en ambas culturas: fertilidad de la tierra, buena cosecha de piñones, buen tiempo, buena reproducción de animales y mucha lluvia, como también las peticiones por determinadas necesidades de la comunidad ... Para los Pehuenche la Araucaria tiene su dualidad, es hombre y mujer a la vez, es la vida porque de ella se toman los frutos y es la muerte porque sin ella simplemente la existencia se limita».[6]

Since the time of Pinochet’s dictatorship, Chilean economic policy stressed privatisation of State enterprises and production strongly related to the exploitation and extraction of natural resources aimed at exportation. In 1978, ENDESA, the National Electric Enterprise created by the State in 1943, decided to undertake hydroelectric projects on the Biobío river. In 1989, the newly-elected Chilean government, the first of the transition of the regime to democracy, approved the plans of ENDESA, which was privatised in 1988, for hydrodevelopment on the river. The year after, authorisation was granted for the Pangue dam by invoking the Electrical Services Law, decreed by Pinochet’s regime in 1982. The building of the Pangue dam consequently resulted in the flooding of 500 hectares occupied by Pehuenche communities, affecting 75 persons. This resulted in the relocation of various families with the loss of contacts with the rest of the community, the loss of important areas of husbandry and collection of pehuen and the flood of ancestral cemeteries and sacred sites. The environmental consequences have also been relevant, including the risk of extinction of 6 species of fish.

"Las consequencias ambientales y sociales provocadas por el embalse son serias, las que comienzan con una desregulación del flujo natural del Biobío, alterando la calidad de sus aguas tanto al interior de la presa como aguas a bajo de esta. Además su funcionamiento ‘exige’ cortes diarios del río, es decir, secarlo en tramos que van de 5 a 15 km. Por 3 horas, sumando 917 horas/año cuyo objectivo es nada más que llenar el embalse, para luego someterlo a golpes de agua en lo que se denomina ‘energía de puntar’. Pangue retendrá el 87cc de los sólidos en suspensión que acarrea el río, material importante porque constituye uno de los principales aportes nutricios al Golfo de Arauco que es una de las zonas pesqueras más importante del país».[7]

While non-governmental organisations and environmental activists started a campaign against the dam, an ENDESA subsidiary, Pangue S.A., created to look after the hydro-development plans on the Biobío, paved a road (in conjunction with the government) that ran eastwards from the Pan-American Highway into the Upper Biobío escarpment. The previously isolated Biobío region became characterised by unchecked immigration, speculation and de-forestation. The area attracted a number of independent timber contractors who gave Pehuenche landowners a small sum of money, harvested their trees and left, making the landowners unwittingly responsible for the violation of Chilean forestry laws, which require permits and reforestation.[8] Furthermore, the Lonquimay volcano, 10 km away from Pangue, had an eruption in 1991.

To finance the cost of the project, ENDESA, through Pangue S.A., requested funds from the IFC, a member of the World Bank Group.[9] After the approval of the Pangue Dam Project in 1993, the IFC and ENDESA signed an investment agreement for a US$ 170 million loan to build Pangue dam, while US$ 28 million was provided by the Swedish Board for Industrial and Technical Cooperation, US$ 14 million by the Norwegian Agency for Development Co-operation (NORAD) and US$ 100 million from 10 European Banks. IFC also held 2,5% equity interest in Pangue S.A..[10]

An institution called the ‘Pehuen Foundation’ was created as part of the agreement signed by the IFC and ENDESA to mitigate the impacts of the building of the Pangue Dam over the Pehuenche communities. The residents of the interested communities (Callaqui, Pitril and Quepuca-Ralco) earned money from direct Foundation programmes and project related wages. Essentially, the tasks of the Foundation were to:

- be a vehicle for sustainable development to provide long-term benefits to the Pehuenche by promoting their socio-economic development;

- make its best efforts to arrange for the supply of electric power to the communities.

In the same period, ENDESA’s plans to build a second and bigger dam, Ralco were disclosed. Various NGOs and the Pehuenche people argued that the building of a large reservoir-dam upstream of Pangue was clearly necessary for the working of the latter (including the building of a powerhouse between the two dams to regulate water flow and generate energy) and that therefore the government should evaluate the environmental and social effects of both the buildings before giving its approval to the Pangue dam. IFC staff and the board reiterated that the Pangue dam was a single, stand-alone dam and that IFC was funding only this dam. In May 1995, the IFC hired anthropologist Theodore Downing as an outside consultant to conduct an interim evaluation of the Pehuen Foundation. This evaluation was to focus on the degree to which the Pehuen Foundation had met its original operating goals. Downing designed a participatory fieldwork strategy and negotiated a contract with the IFC that included reporting the findings of his research to the Pehuenche in a culturally appropriate fashion.[11] At the end of 1995, while ENDESA continued building roads and related infrastructure in the area devoted to Ralco dam project, an NGO called ‘Grupo de Acción por el Biobío’ (GABB), filed a complaint to the World Bank’s Inspection Panel, alleging an IFC violation of the Bank’s directives on environmental and social policies on dam and reservoir projects, including Operational Directives 4.20 on Indigenous Peoples and 4.01 on Environmental Assessment. Furthermore, the complaint affirmed that funds allocated to Pangue S.A. were used for the Ralco project in clear violation of the IFC/ENDESA loan agreement. The Inspection Panel rejected the complaint on the grounds that the IFC was outside the Panel’s jurisdiction.[12] However, as a result of the complaint, in May 1996, World Bank President J.D. Wolfensohn appointed ecologist Jay Hair to evaluate IFC (and ENDESA) compliance with the environmental requirements of the IFC/ENDESA agreement.

At the same time, Downing submitted a highly critical report to the IFC. According to Downing, the Pehuen Foundation, despite some positive achievements, failed to comply with its main tasks. Furthermore, contrary to what was said by the IFC, 77% of the people affected by the nearly completed Pangue dam were Pehuenche. The report also alleged that the IFC staff misled the IFC board and public investors about IFC knowledge of ENDESA plans to build Ralco.[13] In relation to resettlement procedures, Downing claimed that Pangue S.A. and the Pehuen Foundation failed to provide information to the Pehuenche in a culturally appropriate way, offering resettlement packages to individuals and families without opportunities for decisions at the community level, and withholding critical information from the Pehuenche. The Pehuenche were not involved in the establishment of the Foundation; three Pehuenche served in the Foundation but they could be removed if the board decided that they were an impediment. The Foundation failed to understand the Pehuenche social structure attributing to the lonkos an authority to make binding decisions on their groups that is not recognised by the Pehuenche, whose political organisation is based on kinship. Basically the report affirmed that the Pehuen Foundation was not able to assure the Pehuenche’s informed and effective participation in decisions regarding their communities, since, in Downing’s opinion, only a general assembly of the entire group would have provided the culturally appropriate forum for such decisions. The report, submitted in May 1996, was diffused by the IFC only at the end of 1997, threatening the author with the loss of his consultancy job and possible legal action.[14] The report of ecologist Jay Hair, submitted in April 1997, echoed many of the criticisms expressed by Downing’s report, including allegations that from 1988 to 1994, timber worth between US$ 3 million and US$ 18 million had been stripped from Pehuenche community lands as a direct and indirect effect of building Pangue dam. Hair concluded that the IFC failed to comply with 80% of its environmental and social policies.[15] A heavily censored version (1/3 of the document had been deleted) of the Hair report was released in July 1997, compelling Hair to write a letter of protest.[16]

The Ralco dam is supposed to be the biggest of the 6 dams proposed for the Biobío. It would be situated 27 km from Pangue dam. With its 155 metres height, it will flood 3.400 hectares of land to generate 570 Megawatts of electricity/power. The dam will direct the waters into a 7 km tunnel to reach the central turbine at high speed. A majority of the Pehuenche people would be displaced. Approximately 500 to 1.000 persons comprising 91 families of the communities of Quepuca-Ralco and Ralco-Lepoy would have to be resettled. According to some investigations, the dam and its reservoir would threaten 27 species of mammals, 10 species of amphibians, 9 species of reptiles and 8 species of fish. In addition, the development would increase access to logging, threaten aquatic life, erode the land and deteriorate the quality of the drinking water.[17]

During the time from the submission of Downing’s report (May 1996) and its release (December 1997), many developments have occurred in the Biobío case:

- In May 1996, ENDESA and IFC reached a new agreement to use the Pehuen Foundation to mitigate the social impacts of the Ralco dam construction, especially resettlement.[18]

- In the same month, CONADI (the National Commission for Indigenous Development), stated that Ralco was illegal according to the 1993 Indigenous Law 19253.

- In June, CONAMA (Chilean environmental agency born from the 1994 Environmental Law 19300) declared that the Ralco Environmental Impact Statement prepared by ENDESA was unsatisfactory for the second year. The agency made their decision on the basis of various elements, among which, in 1992, the Copahue volcano, 13 km from Pangue and 6 km from the site of Ralco dam, restarted its activity. Another element was a study entitled ‘Efficient Use of Electricity in Chile (1994-2005)’ according to which Ralco would provide energy far in excess of what Chile needs in the foreseeable future, and at an unacceptable high social and environmental cost.[19]

- In September 1996, Pangue dam was completed and in November started to produce energy.

- In February 1997, the IFC threatened to declare ENDESA in default for failing to meet the environmental conditions of the Pangue Agreement.[20] The following month, ENDESA refinanced its loan through the Dresdner Bank of Germany, thus effectively removing the IFC from any interference, apart from the 2,5% equity interest in Pangue S.A..

- In the same period, at the inauguration of Pangue, Chilean President Eduardo Frei publicly supported the development of Ralco[21] and in May, he dismissed CONADI Director Mauricio Huenchulaf, who is of of indigenous origin.

- In June, CONAMA approved the Ralco project Environment Impact Assessment adding some conditions to be accomplished by Pangue S.A.; ENDESA contested the new conditions posed by CONAMA, which included a different resettlement site and reduced power-generation of the hydroelectric central. The decision of CONAMA has been strongly criticised by many parts; a week later, the Institute of Indigenous Studies of the Universidad de la Frontera, in Temuco, produced a critical assessment of CONAMA decision. The Institute, whose consultancy was requested by CONAMA for the 1996 evaluation of Ralco Environmental Impact Assessment, underlined the damages that the Ralco project will bring (if accomplished) to the Pehuenche’s traditions, culture, and archaeological sites. This includes the end of their distinct system of veranadas and invernadas since resettlement would be in a location, El Barco, situated 1.000 metres above sea level (thus covered by snow for the majority of the year), undermining the internal cohesion of the communities. The Institute stressed the lack of participation of the citizenship in the process of evaluation and the strong pressure exerted by ENDESA over the Pehuenche families (for instance, threatening resettlement without compensation if they don’t accept the relocation).[22]

- In the same period, legal action was filedagainst CONAMA approval of the environmental impact assessment (Nicolas Quintreman y Otras contra CONAMA y ENDESA S.A.) by Pehuenche families and two requests of interim measures (Recurso de Protección) were presented by the Coordinadora de Organizaciones Mapuche and the Communities of Quepuca Ralco and Ralco Lepoy against CONAMA decision. All three actions pointed to the lack of respect of the provisions of the 1993 Ley Indígena.

"Es deber de la sociedad en general y del Estado en particular, a través de sus instituciones respetar, proteger y promover el desarrollo de los indígenas, sus culturas, familias y comunidades, adoptando las medidas adecuadas para tales fines y proteger las tierras indígenas, velar por su adecuada explotación, por su equilibrio ecológico y propender a su ampliación".

"Las tierras a que se refiere el artículo precedente, por exigirlo el interés nacional, gozaran de la proteción de esta ley y no podrán ser enajenadas, embargadas, gravadas, ni adquiridas por prescripción, salvo entre comunidades o personas indígenas de una misma etnía.

No obstante, se permitirá gravarlas previa autorización de la Corporación (namely CONADI). Este gravamen no podrá comprender la casa-habitación de la familia indígena y el terreno necesario para su subsistencia

Igualmente las tierras cuyos titulares sean comunidades indígenas no podrán ser arrendadas, dadas en comodado, ni cedidas a tercero uso, goce o administración.

Las de personas naturales indígenas podrán serlo por un plazo no superior a cinco años. En todo caso, estás con la autorización de la Corporación se pordrán permutar por tierras de no indígenas, de similar valor commercial debidamente acredita. Los actos y contratos celebrados en contravención a este articulo adolecerán de nulidad absoluta».

Basically, this article forbids the sale, rent or alienation of indigenous land outside of indigenous communities. The sale of land can only be permitted with CONADI approval. Nevertheless, sales cannot ensure the home of indigenous families and the land necessary for family survival. The article states that every act or contract in contravention with it would receive absolute nullity.

Law 19253 also charged CONADI[24], National Corporation of Indigenous Development, with the task of defending Chilean indigenous interest and land. The agency’s Counsel is formed by 17 members, 8 councillors and 1 director. These members can be removed by the President of the Republic and by 8 councillors from the different Chilean ethnic groups (Aymara, Rapanui, Mapuche …).

On the basis of the Ley Indígena, in September 1997, CONADI, lead by a new Director, Domingo Namuncura, an indigenous person, questioned the legitimacy of individual resettlement agreements between Pehuenche families and ENDESA.

At the end of the year ENDESA ESPAÑA (EE), the Spanish Electric Company, became involved by buying 32% of Enersis, the holding company that controls part of ENDESA Chile.[25] Following changes in ENDESA Chile’s structure, the Pehuenche people sent information on the Ralco case to EE President Rodolfo Martín Villa.

In March 1998, two independent reports were published. The first one is related to the investigative mission in Chile undertaken by the International Federation of Human Rights in July 1997.[26] The mission’s main findings are:

- The realisation of the Ralco project would amount to irreparable damage to the environment and to the disappearing of the traditional way of life of the Pehuenche.

- The building of Ralco would disregard the Ley Indígena, in particular, article 13, and therefore this case is significant for future relations between the Chilean State and indigenous peoples living in its territory.

- The areas proposed for the resettlement of the communities are three. One, El Barco, is situated approximately 1.000 metres altitude and is covered with snow during most of the year. These conditions would impede the traditional life of the Pehuenche, based on invernadas and veranadas. The second alternative, El Huachi, does not offer the opportunity to collect wood or pehuen, pine nuts. The third alternative, Santa Laura, is 85 km from the Upper Biobío area, and would imply breaking relations with the other communities.

"… la pregunta de los representantes de estas comunidades no resulta nada fácil de responder: «Hay tierras donde nosotros pudiéramos reinstalarnos, que ofrecieran condiciones semejantes a aquellas que conocemos y tenemos acutalmente? Si ellas existieran, no creen ustedes que viviendo en estos lugares desde hace siglos, haría ya mucho tiempo que nosotros las habríamos descubierto?»… reflexión que procede de una lógica evidente".[27]

- Any kind of resettlement, however satisfying it could be, would in any case represent a breach of the spiritual relationship that the Pehuenche have with the river, their land, their cemeteries and their ancestors. Furthermore, they would be compelled to adopt a completely different system of agriculture, husbandry and economic survival, therefore abandoning their traditional systems.

- The consultation carried out by ENDESA has not followed the methods indicated by international instruments (such as ILO Convention 169 or UN draft Declaration). ENDESA has not consulted the whole community. Instead, single families were offered new homes with electricity in resettlement sites, jobs and animals for husbandry. This process was not effective and informed consultation.

The Pehuenche group affected by the project is divided between the families that agreed to resettlement (among which there are some that changed their mind) and the families that strongly opposed to the project.

According to the mission, the government should guarantee the effectiveness of law 19.253 and the undertaking of a true process of collective consultation, without taking advantage of the precarious economic situation of the communities.

The second report[28] was prepared by the Committee for Human Rights (CfHR) of the American Anthropological Association (AAA) in response to a complaint of Dr. Theodore Downing, member of the association and author of the evaluation commissioned by the IFC in 1995[29] and not released until the end of 1997. Downing claimed that the IFC failure to release its 1996 report to the Pehuenche in a culturally appropriate forum, as established in the contract negotiated by him and IFC[30], violated the rights of the Pehuenche to be adequately informed before being asked to sign resettlement agreements and his rights as an anthropological researcher and independent consultant. The AAA-CfHR produced a broad report alleging many questionable acts related to the building of Pangue and Ralco dams:

- By refusing to distribute Downing’s report to the Pehuenche representatives in the Pehuen Foundation board (while distributing copies to the non-indigenous representatives), IFC and ENDESA violated the explicit guarantees of the ‘Terms of Reference’ of Downing’s consulting agreement on the right of the Pehuenche to know and participate in their resettlement plans. Furthermore, this action constitutes ethnic discrimination.

- In April 1997, IFC and ENDESA signed a private agreement to address outstanding environmental and social impacts resulting from the IFC’s investment in the Pangue project. This occurred without the awareness or the involvement of the Pehuenche and without disclosing the complete terms of the agreement to the affected people, the Chilean government or the public.

- IFC granted permission to release Downing’s research findings (only on the condition of not qualifying the report as an IFC official document) well after the public review period for the Ralco project had expired. While the IFC justified this action as necessary to avoid threatened legal action against it by ENDESA, it nevertheless contributed to a violation of Pehuenche rights by concealing critical information about the adverse social and environmental impacts of the Pangue dam and the Pehuen Foundation’s failure to meet the majority of its goals.

The report calls upon the IFC, the World Bank Group, ENDESA and the Chilean government to ensure the effective participation of the Pehuenche in all plans affecting them and to ensure that Pehuenche consent is reached through a culturally appropriate decision-making process. The process should reflect group rather than individual consent. The report also affirms that the IFC should adhere to the World Bank’s Operational Directives regarding resettlement, indigenous peoples, environmental assessment and disclosure of information. The IFC should also produce a detailed report on the failures of the Pangue-Ralco project and adequately compensate the Pehuenche for the damages inflicted on them.

"The IFC and the Bank Group as a whole must bear responsibility for the failure to correct and prevent repetition of problems, like those in Pangue-Ralco, that both the bank and its critics have long recognized. In the present case the Bank must recognize and take responsibility for the damage the IFC’s project has inflicted on the Pehuenche, as well as the far greater damage that mass deportation from Ralco will cause. The Bank must publicly call for a halt to the resettlement, at least until adequate and comparable land can be found, and the Pehuenche themselves arrive at a truly informed and democratic acceptance of the plan. It must also make full restitution to the people whose lives it has already disrupted and impoverished. In short, the Bank and the IFC cannot chalk up Pangue and Ralco to a ‘learning experience’ and walk away from the human rights abuse they have precipitated".[31]

In April 1998, one month after the publication of the two reports, World Bank President J. D. Wolfensohn recognised that the IFC mishandled the evaluation of the Pangue dam’s impacts and that, since the World Bank contributed to create the problem of the Pehuenche families, it should help to find a solution.[32]

In July 1998, CONADI called for the block of ENDESA works in the Ralco area for violation of the Ley Indígena. In the following month, CONADI director Domingo Namuncura, appointed a year before, was fired by the government. The appointment of a new director, Rodrigo González, of non-indigenous origin, was not accepted by many Chilean indigenous people. In October, CONADI started to examine the replacement lands related to Ralco. The plan was to relocate the community of Ralco Lepoy to the locality El Barco and the community of Quepuca Ralco to El Huachi. Since January of 1999, approximately 82 replacement lands have been decided: 70 have been accepted and 12 refused. There are still 8 or 9 families who refuse any kind of resettlement. The Mapuche members of CONADI boycotted these meetings, protesting the decision to examine the land substitutes before the judgement on the CONAMA’s approval of ENDESA environmental impact assessment for Ralco. The Governor of the Biobío region, Juan Carlos Coronata, affirmed that the families whose land substitutes have been approved could move to the new sites only after July 1999, the deadline for the scrutiny of the ENDESA Development Plan. The plan is aimed at ensuring Pehuenche social sustainability.

In April 1999, Enersis, owned by ENDESA ESPAÑA, bought an additional 35% of ENDESA Chile, resulting in 60% control of the Chilean electric company. The business was frozen by the Chilean Anti-Monopoly Commission because of the dangers of vertical concentration for Chilean energy consumers. ENDESA Chile generates 55% of the energy used in the Central Interconnected System (SIC) power grid, owns 100% of Transelec, which administers SIC’s high-tension lines (namely electricity transmission), as well as 75% and 90% respectively of power distributors Chilectra and Rio Maipo. In May, the Anti-Monopoly Commission allowed for the conclusion of the operation adding some precautionary measures.[33]

In July 1999, ENDESA Chile administrator Fernando García agreed to meet a Mapuche delegation (the group Mapu Domuche Nehuen) for the first time and affirmed that no final decision had yet been made on the building of Ralco dam. This affirmation was confirmed at the beginning of September. In the meantime, Mario Carroza, judge of Santiago Sixth Civil Court, presiding over the legal actions undertaken by some Pehuenche families against CONAMA and ENDESA S.A., visited the Ralco construction site. On September 8, the judge accepted the preventive measures filed by families and suspended the authorisation allowing preliminary works given by CONAMA on June 1997. At the time, ENDESA was engaged in works of great magnitude including dam works, plant liaisons with the Central Interconnected System through a high tension line, and plans of resettlement of the affected families.[34] ENDESA filed an appeal of the judge’s order and during a meeting with Pehuenche families who support the building of Ralco, ENDESA Chile President, Pablo Yrarrázabal clarified that the will of the Company was to construct the dam while the Ministry of Internal Affairs expressed the Government’s disappointment with the decision of the judge. At the beginning of October, a Santiago Appeals Court suspended the order paralyzing the works on Ralco. The legal action against the building of the dam still awaits a final decision. Last November, various accidents and clashes took place during election-day to renew CONADI Counsel.

In January 2000, the Ministry of Economy authorised the construction of the central electric and the transmission line, but on February 1, the Fiscal Office (Contraloría General de la República), the institution which oversees the decisions of government from a legal point of view, returned the decrees to the Ministry for lack of information regarding water rights (it seems that some of the water rights needed by ENDESA are owned by some of the families opposed to the project) and formal problems with the electric concessions. A few weeks later, ENDESA decided to cease Ralco development at the beginning of March because not all of the necessary permits had been received. The move has been seen by the opponents to Ralco and some journalists as a way to apply pressure to the government and receive the concessions before the appointment of the newly-elected government of Ricardo Lagos. The new President did not seem to support the building of the dam as strongly as his predecessor Eduardo Frei[35]. The workers employed in the Ralco project (among which were some Pehuenche) began a series of public actions to express their disapproval with ENDESA’s decision. In March, just before the new government come to power, the Contraloría accepted the decrees of the Ministry of the Economy allowing ENDESA to restart the Ralco project in April. This decision provoked two legal actions. The two actions, initiated by the families opposed to the project and by a member of parliament with an ambientalist association, point to the fact that ENDESA has not considered all of the necessary water rights and has not allowed the affected people an opportunity to consent to resettlement[36]. These legal actions will finally force the judiciary to determine the supremacy of the Ley Indígena or the Ley Eléctrica, enacted in 1982 by the Pinochet regime.

In theory, the new laws prevail over the older ones and the specials over the normatives (general); Law 19253 is special and more recent. However, it seems that ENDESA strategy is to continue with the operations in the Ralco area. As a result, a court would not judge against something already built and presently working. In the April of 2001, a decision was waited on the case filed in 1997 by the Pehuenche families still opposed to the project.

4. Possible legal resorts for the Mapuche-Pehuenche at the international level.

This paragraph will give an overlook of the main legal resorts available at the international level for the protection of indigenous peoples' right to land, namely: the individual petitions to the Human Rights Committee (HRC), the ILO Convention 169, the World Bank's Guidelines, the Inter-American System. The UN Working Group on Indigenous Populations (WGIP), created in 1982 as subsidiary organ of the Sub-Commission is also an important reference for many indigenous peoples; different NGOs have denounced the injustices suffered by Pehuenche in the meeting ot the WGIP, but this forum, although bringing to a wider public the knowledge of the situation of Pehuenche, has neither judicial feature, nor function of this kind. The Draft Declaration on Indigenous Peoples, completed in 1993, could be used to show several rights not respected in this case, primarily the recognition of the indigenous peoples' ownership of their traditional lands, the effective participation of indigenous peoples iin projects that affect them and the principle of free and informed consent to decisions that regard them. But, still, this declaraton is only the draft version of a non-legally binding document.

International environmental law does not provide for specific procedures to be used by indigenous peoples[37].

The article usually invoked by indigenous people in their petitions to the HRC is art. 27 of the ICCPR. Art 27 says:

"In those States in which ethnic, religious or linguistic minorities exists, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language".

In principle, art. 27 is aimed at the protection of individual members of minorities, but the practice of using it to protect indigenous individuals’ rights has been confirmed by the Human Rights Committee (HRC) General Comment n. 23 on art. 27, where it is said:

"With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specially in the case of indigenous peoples".[38]

The first case under art. 27 related to indigenous peoples was Sandra Lovelace v. Canada[39], where the Committee decided in 1981 that the application of Canada’s Indian Act forbidding the petitioner to live on the reserve because she married a non-indigenous man was a deprivation of her cultural identity and a violation of art. 27. The Government of Canada changed the law in 1985. In contrast, in Kitok v. Sweden[40], issued in 1985, the Committee accepted that the decision of Mr Kitok’s village not to reintegrate him after his absence from the community due to another job was a necessary restriction for the continued viability and welfare of the minority as a whole (para. 9.8).

One of the most important cases regarding indigenous peoples’ rights remains The Lubicon Lake Band[41] decision. In 1984, Chief B. Ominayak and the Lubicon Lake Band asserted that Canada had violated their right to self-determination; in particular, their right to freely dispose of their natural resources, by expropriating part of the Band’s territories, in order to grant interests in gas and oil exploration to private corporations. The HRC decided in 1990 that an individual application under art. 2 of the Optional Protocol to the ICCPR could only assert a violation of individual rights and that the communication was therefore inadmissible with regard to the alleged violation of art. 1 (self-determination). However, the HRC found that the application was admissible insofar it might raise issues under Art. 27 or other articles of the Covenant (para. 14). The Committee accepted many arguments of the applicant saying that [h]istorical inequities, to which the State party refers, and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of Art. 27 as long as continue (para. 33), but it decided that a simple compensation was a satisfying remedy. The importance of this decision is in the question of admissibility, since the interpretation of the Committee recognised the right of self-determination as not encompassing individual rights and unenforceable under the Covenant, as confirmed by the 1991 Micmaq decision.[42]

In the ‘90s, three cases under art. 27 were decided with respect to the Sami people and Finland. All three related to projects affecting traditional indigenous lands and the environment. In Sara et al. v. Finland[43], reindeer breeders of Sami origin, aleged that a law (the Wilderness Act), adopted by the Finnish Parliament in 1990 to regulate logging activities in the north of Finland would jeopardise the future of reindeer herding and Sami livelihood by authorising logging in areas used by the applicants for reindeer husbandry. In 1994, the petition was held to be inadmissible for the feilure to exhaust local remedies.

In Länsman et al. v. Finland[44], the applicants were members of a Sami Herdsmen’s Committee that traditionally occupy an area administered by the Central Forestry Board. This institution had signed a contract with a private company for the extraction of stone from a mountain, which was a sacred place for the old Sami religion, and also for the transportation of the stone through Sami reindeer herding territory. The applicants argued that this operation violates their right to enjoy their own culture, which is strongly based on reindeer husbandry, and therefore, in breach of art. 27 of the Covenant. The applicants also asked for the adoption of interim measures of protection, under rule 86 of the HRC rules of procedure, so to avoid irreparable damages. In its 1994 decision, the Committee discarded the request of interim measures as premature. It then affirmed that the quarrying of the slopes of Mt. Riutusvaara in the amount that had already taken place had minimal impact on any reindeer herding activity in the area and on the environment as conceived in the quarrying permit. The HRC also underscored the importance of consulting the applicants during the proceeding, as provided in the General Comment n. 23 to art. 27. Therefore it decided that art. 27 had not been violated, but stressed that if mining activities in the Angeli area were to be approved on a large scale and significantly expanded by these companies to which exploitation permits have been issued, then this may constitute a violation of the authors' right under article 27 (para. 9.8). Very important for indigenous peoples in general is para. 9.3 of Committee’s decision, where it affirms:

"The right to enjoy one’s culture cannot be determined in abstracto but has to be placed in context. In this connection, the Committee observes that article 27 does not only protect traditional means of livelihood of national minorities, as indicated in the State party’s submission. Therefore, that the authors may have adapted their methods of reindeer herding over the years and practice it with help of modern technology does not prevent them from invoking article 27 of the Covenant".[45]

The third case, Jouni E. Länsman et al. v. Finland[46], has been initiated by other members of the same Muotkatunturi Herdsmen’s Committee, this time to complain against the Central Forestry Board’s plans to approve logging activities and the construction of roads in an area covering about 3.000 hectares situated within the traditional Sami winter herding lands. In 1996, the Committee applied the decision of the Länsman et al. v. Finland case, underscoring the importance of consultation with the applicants, affirming its inability to find a violation of art. 27 on the basis of the amount of logging approved by the State’s forestry authorities and considering that the allowance for logging on a large scale would constitute a violation of art. 27. At the end of the decision, the HRC appears to have made a contradictory affirmation:

"The Committee is aware, on the basis of earlier communications, that other large scale exploitations touching upon the natural environment, such as quarrying, are being planned and implemented in the area where the Sami people live. Even though in the present communication the Committee has reached the conclusion that the facts of the case do not reveal a violation of the rights of the authors, the Committee deems it important to point out that the State party must bear in mind when taking steps affecting the rights under article 27, that though different activities in themselves may not constitute a violation of this article, such activities, taken together, may erode the rights of Sami people to enjoy their own culture".[47]

Also, in this case, the HRC did not address the question of the right over lands traditionally held by indigenous peoples. The HRC seemed to agree with the ILO Convention 169, according to which the consultation with the people affected is a sufficient measure, rather than with the UN Draft Declaration that requires the free and informed consent of the people concerned.

A right successfully pursued by indigenous peoples is the right to private life and familial life contained in articles 17 and 23 of the Covenant on Civil and Political Rights. In Hopu et al. v. France[48], decided in 1997 by the HRC, two indigenous Polynesians, residing in Tahiti (French Polynesia), filed a petition against the development of an hotel complex in an area that contained an ancestral cemetery, existing prior to European arrival. They alleged that the development was a violation of various articles of the Covenant, including arts. 17.1, 23.1 and 27. The HR Committee was unable to determine any art. 27 violation since the declaration made by France over this article (‘in the light of article 2 of the Constitution of the French Republic, ... article 27 is not applicable as far as the Republic is concerned’) at the moment of ratifying the Covenant is considered by the HRC as a reservation (Comm. para. 4.3). Instead, the HRC accepted the argument of the petitioners in relation to arts. 17.1 and 23.1.

"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, not to unlawful attacks on his honour and reputation".

"The family is the natural and fundamental group unit of society and is entitled to protection by society and the State".

The Committee seems to have followed the example of the European Court of Human Rights, which in certain cases has widened the meaning of art. 8 (right to respect for private and family life, home and correspondence), to protect the right to environment (for example Lopez-Ostra case). Indeed the HRC in its decision has considered that:

"... the objectives of the Covenant require that the term ‘family’ be given a broad interpretation so as to include all those comprising the family as understood in the society in question. It follows that cultural traditions should be taken into account when defining the term ‘family’ in a specific situation. It transpires from the authors’ claims that they consider the relationship to their ancestors to be an essential element of their identity and to play an important role in their family life. This has not be challenged by the State party; nor has the State party contested the argument that the burial grounds in question play an important role in the authors’ history, culture and life".[49]

This decision could represent an important precedent and furthermore seems to be very important for the case dealt with here since the amount of sacred sites and ancestral cemeteries at risk for the building of the dam. Chile has signed both the Covenant and the Optional Protocol, so it is possible that the individuals who started a legal action against the decision of CONAMA (State’s agency for the environment) in June 1997 to approve the Environmental Impact Assessment prepared by ENDESA for Ralco building, could, after exhausting the legal remedies present in the Chilean system, file a petition to the HRC. It is out of doubt that the building of Ralco dam (as it has happened with Pangue), with the consequent resettlement of Pehuenche families and the loss of the traditional life-system based on veranadas and invernadas, would represent a clear breach of the culture and way of life of Pehuenche (as observed in the General Comment 23 to art. 27[50]). Furthermore, in case of petition to the HRC, the Pehuenche could request the adoption of interim measures of protection under rule 85 of HRC Rules of Procedure.

The International Labour Organisation (ILO) has devoted more attention to indigenous peoples than any other UN Special Agency, or for that matter, any other international organisation in general. In 1930, it adopted a Convention on Forced Labour, with several dispositions connected to indigenous workers, and in 1939, adopted the Convention 65 on penal sanctions to indigenous workers. In 1953, the ILO published a study entitled Indigenous Peoples, a survey of indigenous peoples’ living and working conditions. In 1957, Convention 107 on Indigenous and Tribal Populations was adopted. The Convention was drafted in the name of the entire UN System and for 30 years was basically the only instrument specifically devoted to indigenous peoples. 27 countries have ratified it. During the ‘80s, many NGOs, indigenous organisations and also the Martinez-Cobo report[51] called for the revision of Convention 107, in particular for its assimilationist approach. This was done with 1989 Convention 169 on Indigenous and Tribal Peoples in Independent Countries, ratified so far by thirteen States. The Convention consists of a Preamble and an operational part divided in 10 sections, equivalent to 44 articles. The Preamble has underscored the need for new standards, represented also by the use of the term ‘peoples’ instead of ‘populations’. The ILO has clarified that the use of the term ‘peoples’ is not linked to the question of self-determination, an issue over which the ILO takes no position and is left to UN competence[52]. The Convention has fixed many of the arguments in favour of the protection of indigenous peoples’ lands and territories. It recognises the collective character of the relationship of indigenous peoples with land and it considers the concept of land as covering the total environment of the area they occupy. Nevertheless, it seems quite generic in allowing the relocation of indigenous peoples without their consent and without indicating in which cases it can occur, saying only that a clear procedure where indigenous peoples have to be represented is necessary. Furthermore, the State is given broad autonomy on the questions of replacement of lands with equal value to the ones expropriated, compensation, and retaining the ownership of the subsoil (art. 15.2). Other parts of the document refer to the general provision on respect of different customs and traditions, recruitment and conditions of employment, vocational training, handicrafts and rural industries, social security and health, education and means of communication, contacts and cross-border co-operation.

The supervisory system of the Convention is the general one of the ILO: the revision of States’ reports and the petition system. The ratifying States periodically send a report on the implementation of the Convention. Indigenous workers’ organisations can express their comments over these reports that are examined by the ILO Committee of Experts on the Application of Conventions and Recommendations. This Committee can address ‘direct requests’ to the concerned States; these requests are not published and regard minor issues that States should undertake to solve problems. The petition system consists of two procedures. The first procedure allows, under art. 26 of the ILO Constitution, any State-party, any delegate to the International Labour Conference or the ILO governing body, to file a ‘complaint’ against a State who ratified the Convention for an alleged violation. This procedure leads to the establishment of a Commission of Inquiry. The second procedure, under art. 24 of the ILO Constitution, consists of a ‘representation’ filed by any workers’ or employers’ organisation alleging violation of a ILO Convention by a State that has ratified it. This results in the appointment of a tripartite Governing Body Committee that examines and decides the case, usually on the basis of an exchange of correspondence with the State concerned.

"Even though indigenous peoples themselves cannot directly file complaints to the ILO, others could do so on their behalf. There is no requirement that a party initiating a complaint under article 24 or 26 of the ILO Constitution, or the party’s constituency, be directly affected by the alleged infraction. Labor unions are especially likely surrogates for indigenous peoples, given the demographic overlap and political alliances between indigenous and labor sectors. Additionally, the ILO Government Body itself is authorised to initiate article 26 complaints and could do so upon information provided by indigenous groups or by nongovernmental organisations concerned with indigenous peoples’ rights".[53]

ILO Convention No. 169 is often cited by Mapuche NGOs or Pehuenche associations to underscore the government’s failure to recognise and protect the Pehuenche and, in general, Mapuche rights to their traditional land and the need for their effective consultation in case of decisions or actions affecting these rights. Unfortunately, the Chilean State has not yet ratified the Convention. Although its supervisory system is not really used by indigenous peoples, the ratification of Convention 169 would certainly compel the Chilean State to change its ambiguous attitude towards the Biobío case.

The role of the World Bank in relation to indigenous peoples seems to be strategic, since it has participated in many of the development projects that have most affected indigenous peoples’ rights, environment and survival (to stress just two examples, the Narmada dam in India and the Bayano dam in Panama). Awareness about this situation has been growing in the World Bank Group since the ‘80s. In 1982, an Operational Manual Statement (OMS 2.34) was issued with the title Tribal People in Bank Financed Projects. This directive reflected much of the integrationist approach of ILO Convention 107. It enumerated a long list of characteristics defining tribal peoples and it stated that it was concerned with projects that have a direct or indirect impact on tribal peoples. Its guiding principle was that development projects which affect tribal peoples should provide adequate time and conditions for acculturation[54] and that special programmes should be included in the projects to mitigate adverse effects.

In 1986, the World Bank began a Five Year Implementation Review and in 1991, it issued a revised Operational Directive (OD 4.20) on Indigenous Peoples. The evolution from the first directive is evident in the title. Indigenous peoples (or other equivalent terms such as indigenous ethnic minorities, tribal groups and scheduled tribes) refers to social groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process.[55] But it also states that because of the varied and changing contexts in which Indigenous Peoples are found, no single definition can capture their diversity.[56] The directive states that the Bank’s objective is to both protect indigenous peoples against the potential harm or damage caused by development projects as well as to provide them (if they so wish) with new opportunities to participate in the benefits of the development process. The basis is the informed participation and recognition of the preferences of indigenous peoples.[57] Paragraphs 15.c and 15.d are devoted to Land Tenure and Strategy for Local Participation.

In 1989, the World Bank issued an Operational Directive on Environmental Assessment (OD 4.00 then revised in 1991 as OD 4.01) to guide environmental impact assessment of World Bank’s finance projects. This directive refers to indigenous peoples’ practices as well as to the 1993 New Forestry Policy (OP 4.36). Anther important point is that in 1994, the World Bank established an Inspection Panel to investigate complaints filed by a group affected by a project of the International Bank for Reconstruction and Development (IBRD) or the International Development Association (IDA).[58] The party with a complaint can request an investigation to verify the compliance of these agencies with World Bank’s policies and operational directives. The Panel must inform the Executive Directors of the request and send it to the Bank’s President. If the Executive Directors decide that an investigation should be undertaken, the Panel has full access to all staff and pertinent Bank records and delivers a report to the Executive Directors. They verify which initiatives have been taken by the management to respond to the complaint and subsequently inform the affected party. The complaint to the Inspection Panel was filed in 1995 by the Mapuche-Pehuenche, to request an investigation into the World Bank’s involvement in the dam project on the Biobío river (see .Par. 3.4). The complaint was rejected on the basis that the IFC is outside the Panel's jurisdiction. In light of the clear admission of responsibilities of IFC in the case and of World Bank's attitudes as analysed in previous paragraph, a question of irresponsibility of this institution comes out. This issue will be analysed separately in next paragraph.

Although neither the Inter-American Declaration on the Rights and the Duties of Man (1948), nor the American Convention on Human Rights (1968) contain specific articles about indigenous peoples, the Inter-American Commission of Human Rights (IACHR) has addressed this issue on several occasions. In particular, the IACHR has reported on human rights in Paraguay (1978, 1987), Nicaragua (1978,1981), Colombia (1981), Guatemala (1981, 1983, 1985 and 1993), Bolivia (1981) and Suriname (1985). In 1983, the Commission published a Special Report on the Miskito Indians in Nicaragua, and, in 1994, produced a report titled the ‘Communities of Peoples in Resistance in Guatemala’ regarding the Maya Quiche people. In the case Aloeboetoe et al. v. Suriname (1995)[59], the IACHR addressed specific issues of indigenous communities and explicitly took into account indigenous customary law.

The Commission has also discussed cases issued by indigenous organisations or NGOs, as with the Guahibo people of Colombia (1970), the Aché Guayaki people of Paraguay (1974) - when a Special Rapporteur was assigned to the case- and with the Yanonami people in Brazil (1980). The rate of extinction of this latter group was a cause of concern in the ‘70s and ‘80s, but has slightly improved following a 1992 land demarcation. However, the Commission remains interested in the case. Another important case concerns the Huaorani, an Amazonian people living in the rainforest of Ecuador. Oil exploration in the area has decimated several indigenous peoples since the ‘70s and exterminated entire groups such as the Tetetes. The same is happening to the Huaorani: oil spills have damaged the entire environment and polluted the rivers, making fishing, bathing and drinking impossible. The arrival of white workers and colonists have spread alien diseases, prostitution and alcoholism among the Huaorani people, while violent confrontations with colonists have taken place.[60] A petition to the IACHR was filed in 1990 against the government of Ecuador, seeking precautionary measures to avoid irreparable damages (under art. 29 of the American Convention). The petition alleged the violation of many articles of the American Convention, including art. 27 of ICCPR (of which Ecuador is part). The alleged violation of art. 27 is similar to the Lubicon Lake Band case under the UN Human Rights Committee and the Yanonami case under the IACHR. The violation of the right to a healthy environment, contained in the Protocol of San Salvador to the American Convention (1988, art. 19), could not be alleged since the Protocol has not yet entered into force. In addition, the Protocol does not allow petitions brought before the IACHR on most of the articles contained in it.

Although not having formally accepted the case, in 1994, the IACHR visited Ecuador under formal invitation of the government (after lengthy pressure by the petitioners). The IACHR made important statements on pollution resulting from oil developments, linking it with possible violations of the right to life as guaranteed in the American Convention.

"The Huaorani’s Petition before the IACHR, despite suffering from the slowness and limited enforceability common to international actions, is the last resort for the protection of this group’s environmental human rights ... The Huaorani action raises awareness both at the OAS level and among the general public about the suffering of Indigenous Peoples as a result of environmental destruction".[61]

The Huaorani case is of major relevance for the protest of the Mapuche-Pehuenche. Chile has ratified the American Convention on Human Rights in 1990, accepting the jurisdiction of the Court. Nevertheless, while a petition to the Inter-American system shares the same admissibility requirements of the ICCPR, the American Convention does not contain a provision similar to ICCPR art. 27. It has yet to be seen if American Convention arts. 11 (right to privacy) and 17 (right to family) would be interpreted as widely as the HRC interpreted ICCPR arts. 17 and 23 in the Hopu case. The cases examined above, have been addressed by the IACHR, often acting only as an OAS organ and basing its work on the American Declaration on the Rights and Duties of Man. In the Yanonami case, the IACHR held that the Brazilian government had violated the Yanonami rights to life, liberty, personal security, residence, movement and health because of its failure to take timely and effective measures "on behalf of Yanonami".[62] Also, in the Huaorani case, the Commission, informally defined the responsibility of the State towards projects and decisions that affect indigenous peoples living in their territory. Moreover, the IACHR affirmed that indigenous peoples’ life and health could be violated simply by attacking their way of life, their land and their culture. In both cases, reference was made to ICCPR art. 27.

The Inter-American system is concerned with the drafting of a Declaration on the Rights of Indigenous Peoples. This declaration, revised by the IACHR in 1997, recognizes the importance of collective rights as indispensable to indigenous peoples and their members to enjoy individual human rights (art. II.2). The definition was influenced by ILO Convention 169 on the question of self-definition (art. I.2), and the use of the term ‘peoples’ (art. I.3). A long article is devoted to the Right to Environmental Protection (art. XIII) and another one to Traditional Forms of Ownership and Cultural Survival. Rights to Land, Territories and Resources. Nevertheless, ownership of resources pertaining to land is not clearly attributed to indigenous peoples (art. XXIII.5) and not explicitly listed is the principle of free and informed consent (art. XXIII.6). However, the right to self-government within the State is clearly affirmed in art. XXV.

This paragraph will attempt to assess the major obstacles encountered by indigenous peoples when seeking legal redress at the international level, as exemplified by the case of the dams on the Biobío. This will be done by taking into account the analysis of the actual processes of globalisation and privatisation and their impact on State control of economic activities.

"The denials and violations of rights in this case resulted partly from the institutional cultures of the IFC, the World Bank and ENDESA. They must also be understood within the broader context of the global economy and the political climate in which the World Bank Group, and other public institutions engaged in private-sector lending, operate. The conflict between economic privatization, human rights and social, cultural and environmental values has become an increasingly pervasive feature of the contemporary world …". [63]

Many of the rights whose violation is alleged by the Pehuenche have been affected by ENDESA (sometimese in conjunction with IFC) acts. The State has in these cases an obligation to protect the rights of indigenous peoples living in its territory. Possible solutions will be indicated to face the obstacles to an effective protection of indigenous peoples' right to preserve their land and environment.

One of the issues raised by the Biobío case is how economic interests represented by a private corporation pressure the State and its branches (legislative, executive, judiciary).

This must be seen in the context of the process of globalisation mentioned above. The increasing process of economic standardisation and concentration has placed a lot of political power in the hands of the largest TNCs. The process of privatisation weakens the State’s control over economic activity and encourages the tendency for development projects to operate beyond effective public scrutiny and political control.

"Even strong national governments are no longer able to exert any sort of control over TNCs. If a country passes a law that TNCs regard as a hindrance to their further expansion, they merely threaten to leave and establish themselves elsewhere ... Indeed, TNCs are now free to scour the globe and establish themselves wherever labor is the cheapest, environmental laws are the laxest, fiscal regimes are the least onerous, and subsidies are the most generous".[64]

If the political and social environment where TNCs pursue their activities pose too many obstacles, they use their economic weight to overcome these obstacles by threatening to invest in other countries and obtaining permits for operations that in their home-country would be illegal.

ENDESA was able to avoid the publication of two highly critical reports that showed its lack of respect for the environmental and social factors as contained in the loan agreement with the IFC, by threatening legal action to a member group of a UN Specialised Agency. When the IFC finally exposed ENDESA in February 1997, ENDESA repaid its IFC loan a new private bank loan. This case shows how little power lending agencies have to compel the recipient to comply with whatever standard or restraint they can have imposed as conditions to grant the loan. Lending agencies have even less power when the TNC in question can chagne the source of the loans easily.

The need for codes of conduct has been affirmed in the case of TNCs (which, as private companies, could be seen as including also private banks[65]). These instruments should entrench the principle of effective participation of the people affected by TNCs’ projects and their free and informed consent. Also important is the verification of TNCs’ compliance with these codes by an independent body that could also hear individual complaints. In a different context, awareness of the responsibilities that TNCs have with respect to human rights, in view of their enormous economic power, emerged several years ago. In 1974, the UN Economic and Social Council created the Committee for Tribunal Enterprises with resolution 1913 (LVII). This Committee was charged with producing international standards of conduct for private companies. In 1986, the Expert Group on Environmental Law to the World Commission on Environment and Development recommended world wide adoption of OECD ‘Guiding Principles for Multinational Enterprises’ that included private banks.[66] In 1994, the WGIP submitted to the UN Centre on Transnational Corporations a report on TNCs’ activities with adverse impacts on indigenous peoples’ land rights. The report made some important points on the relation between TNCs’ projects and indigenous peoples:

"21. The adverse social and environmental impacts of TNC projects, as perceived by the indigenous peoples who are affected, tend to be markedly lower in cases where there was a high degree of indigenous participation in planning and management, and in sharing benefits ...

22. TNCs find it easier to involve indigenous peoples in decision-making when indigenous peoples’ rights to their lands are secure ... Land rights are a necessary precondition for effective participation. Secure land rights are not sufficient, however. Indigenous peoples must have the capacity to obtain and assess all relevant information about the structure and past performance of the TNC, about the industry, and about the particular project. They must also have the means of developing an internal consensus regarding the impacts and benefits of proposed projects, and of expressing their concerns during negotiations with TNCs".[67]

In 1997, in its 15th session, the WGIP adopted ‘Guidelines relating to transnational corporations and indigenous peoples submitted by the indigenous preparatory meeting (26-27 July 1997)’.[68] The Guidelines incorporated, as their first point, the principle of free and informed consent and, secondly, the principle of consultation. It also contained provisions for a monitoring and recourse mechanism.

Clearly, all these steps forward in the attribution of human rights responsibilities to TNCs fall short of a real and effective system of monitoring and protection of indigenouns peoples' rights before these actors.

5.2. The lack of control by the funding agencies and their irresponsibility.

World Bank, as other Multilateral Development Banks (MDB), has often been in the forefront in big-development projects. One question associated to that is the strong push of lending agencies for privatisation.

"The Bank’s turn toward privatization has been associated with a tendency to deemphasize social and environmental considerations as criteria for loans (exemplified within the World Bank Group by the approach of the International Development Agency), in favour of a more exclusively economistic approach that focuses on optimizing positive rates of return on development lending. These trends are clearly in line with current political pressures for privatization, deregulation and denationalization, which are integral aspects of the accelerated globalisation of the world economy. Pressures for competitiveness in global markets are widely adduced as necessitating the removal of political and governmental controls from economic activity, and the consequent relaxation of institutional safeguards for social and ecological values».[69]

The IFC represents clearly the switch of the WB towards privatization and the consequent loss of transparent control on its performance. The IFC incorporates environmental and social covenants into each loan agreement with a private recipient, but it reserves the prerogative to keep parts or all of these covenants secret, selectively eliminating the opportunity for public disclosure of its accountability. The IFC Vice-President Carol Lee stated, in a forum organised by AAA CfHR that IFC project staff, which colluded with ENDESA personnel in using the Pehuen Foundation for Ralco dam, did not communicate its actions to the IFC administrators in Washington.[70] At the same forum (November 1997), the IFC admitted to making "serious mistakes" in the Pangue case; in particular, regarding the project’s indirect impacts on indigenous peoples. However, the IFC considered these mistakes as part of its ‘learning curve’ and, when asked about its responsibility in the case, no answer was given. World Bank President J.D. Wolfensohn clearly admitted the poor handling of the Pangue project and the responsibilities of the IFC (that still owns a 2.5% of equity interests in Pangue S.A.) in 1998.[71] Nevertheless, the Pangue dam has been built, the IFC loan has been repaid and the Ralco dam is under construction. No compensation has been given to the Pehuenche for their suffering of IFC's mistakes and 'learning curve'.

"Bank officials from President Wolfensohn down are wont to cite the Bank’s numerous operational directives when responding to criticisms of the Bank’s performance. Over the years, the Bank has adopted these directives on topics such as resettlement and the special problems of indigenous peoples, in effect to prevent the recurrence of abuses perpetrated in previous Bank-funded projects. In fact, the Bank’s policy on indigenous peoples is ‘strong’. Its Operational Directive 4.20, promulgated in 1991, spells out in enlightened and detailed terms the importance of ensuring indigenous peoples’ full and informed participation in implementing development projects that impinge upon them, protecting their lands, etc. (World Bank 1991). The problem however, is not with the context of the Bank’s policy directives, but with the way its projects subsequently proceed to violate them. ENDESA and the IFC violated virtually all the main provisions of the operational directive on indigenous peoples in the Pangue-Ralco project, a project that began after it and other relevant operational directives had been in effect for a half-dozen years. The Pangue-Ralco project also blatantly violates the World Bank’s directive on resettlement, which has been on the books since the early 1980s".[72]

Following international pressure that the case of Pehuenche has raised, the IFC has taken various steps to enhance its performance in funding development projects. In 1998, after a long public comment period, it adopted a Procedure for Environmental and Social Review of Projects; a Policy in Disclosure of Information; and an Operational Policy on Environmental Assessment (O.P. 4.01). The IFC also announced the future adoption of policies on Indigenous Peoples (O.P. 4.10), the Safeguarding of Cultural Property (O.P. 4.11), Involuntary Resettlement (O.P. 4.12), and the Safety of Dams (O.P. 4.37).

Nevertheless, different perplexities can be raised. The Procedure for Environmental and Social Review of Projects (July 1998, revised December 1998) announced in the introduction:

"... IFC applies World Bank Group environmental, health and safety guidelines to all projects. In sectors where no appropriate IFC policies or guidelines exist, IFC applies relevant internationally recognized standards. Furthermore, the project sponsor must ensure compliance with host country requirements".[73]

"IFC’s client base and project cycle are different from those of the World Bank. IFC’s environmental and social policies, while harmonized with World Bank policies, are adapted to the private sector nature of IFC’s business".[74]

This statement provides a broad scope for interpretation. The Policy on Disclosure of Information (September 1998) seeks improvements by granting publicity to ‘summaries’ of the environmental and social covenants that the IFC negotiates with borrowers for specific projects, but these summaries would only have the status of interpretation with no legal force or commitment. The Policy on Environmental Assessment tries to address the need for effective participation of the people affected by the project. The forthcoming policies are a promising step towards IFC alignment to World Bank commitments. Still, what is lacking is IFC submission to the Inspection Panel’s scrutiny.

At a more general level, some doubts could be advanced about the Panel too, since this body remains an internal part of the World Bank Group. Therefore, an important action that the World Bank could undertake, as a UN Specialised Agency[75] with human rights obligations under the UN Charter, would be the establishment of an independent monitoring and complaint system to evaluate the compliance of Bank members to its environmental and social policies and international human rights standards.

"The Bank has repeatedly recognized and criticized such ‘mistakes’ in internal Bank reviews and reports. These have frequently led to the drafting of new policies and the hiring of more anthropologists and other expert advisory staff, who in turn have prepared more forceful and specific operational directives, such as the ones on indigenous peoples and resettlement we referred to earlier. Many have been flouted by projects like Pangue-Ralco. In sum, the Bank’s ‘learning curve’ has had a cyclically recursive configuration ... The Bank has yet to demonstrate the ability to put enough teeth into its own directives and monitoring procedures to make them reliably enforceable. This reluctance clearly stems from a deeper unwillingness to impose serious impediments to the overriding pressure to lend".[76]

As the case shows the improvements of IFC's performance at this stage would not impede the actual course of things since the WB's loan has been repaid. Nevertheless, a serious compensation for the families living in the Biobío area and the Pehuenche community joint with a transparent criticism of the perseverance of ENDESA and the Chilean Government in the building of Ralco would be the sign of WB's real commitment to the protection of indigenous peoples' right of effective participation and free and informed consent to decisions affecting their lands and environment.

In par. 4 an analysis was made of the possible legal resorts at the international level to be used by Mapuce-Pehuenche to protect their rights. The WB system has been dealt apart for its importance in the case, due also to the fact that a complaint was actually filed to the Inspection Panel.

Looking at the other legal resorts, the case seems to confirm the impression that the individual petition to the HRC Committee (alleging the violation of either ICCPR art. 27 or arts. 17.1 and 23.1) is the most effective legal resort that indigenous peoples use. This argument calls into question the applicability of the existing instruments directly related to indigenous peoples; ILO Convention 169 seems more useful as favouring State’s entrenchment of indigenous peoples’ rights than for its supervisory system. As ILO Convention 169 is still not ratified by Chile, the remaining possibilities for redress are individual petitions under the ICCPR (HRC) or the American Convention on Human Rights (IACHR). Both of these instruments are not directly related to indigenous peoples and in the second one, a specific article like art. 27 of the ICCPR does not exist. The analysis of the case underlines also the need to act promptly when it is needed to protect indigenous peoples’ land or environment. In this sense, some perplexity can be advanced about HRC individual petition feasibility to address more rapidly situations as the one faced by the Pehuenche.

One problem related to the filing of a petition to the HRC is the difficulty in finding lawyers to work on the case. This problem has been underscored by the Special Rapporteur Mrs. Erica I. Daes in its ‘Preliminary report on the relationship of indigenous peoples with land’:

"In other settings, there is no effective legal system to provide a remedy, or indigenous peoples cannot afford to pay for necessary professional legal representation, or they cannot use the language required by the courts or legal agencies, or they cannot travel to courts or legal agencies, or they simply do not know that legal remedies may be available. As with other human rights, the poverty, geographical remoteness and cultural and linguistic differences of indigenous peoples creates severe impediments to the protection of their land, territorial and resource rights".[77]

This article’s main objective is to examine the difficult protection of indigenous peoples’ right to land. Through the analysis of the case of the Pehuenche and of the issues raised by it, different conclusions can be drawn.

Firstly, indigenous peoples’ land rights can be threatened by non-State actors such as Multilateral Development Banks and transnational corporations. This is due mainly to the actual process of globalisation and associated privatisation, with the State’s loss of control over economic activities taking place in its territory. The case of the dams in the Biobío undoubtedly shows the responsibilities of ENDESA and IFC (World Bank) towards the Pehuenche’s rights. The IFC alone, and the World Bank as a whole, have taken important steps to improve their accountability in funding development projects. Still, much is to be done to enforce the policies regarding indigenous peoples and environment adopted by the World Bank Group, especially in consideration of World Bank’s responsibility as a UN Specialised Agency.

TNCs are generally less susceptible to public criticism and influence than public institutions. They almost invariably lack general policies protecting human rights and the environmental quality of the peoples and regions their operations affect. Transnational corporations have enormous ability to invest where they encounter few impediments by the State’s institutional system and law. This calls for the adoption of codes of conduct. These codes should incorporate the main international human rights standards and also specific provisions for the protection of indigenous peoples’ lands (and intellectual property and genetic resources ...). The code’s compliance should be monitored by an independent body with a mandate to receive individual petitions about potential violations of one code by one TNC.

The second conclusion regards the question of the free and informed consent of indigenous peoples and their effective participation in decisions and projects affecting them. This issue is correlated with the previous one. Codes of conduct and monitoring systems for TNC’s, as well as World Bank policies, should incorporate and implement these two principles to ensure the respect of indigenous peoples’ right to land. While the principle of free and informed consent has been clearly affirmed without exceptions only in the UN Draft Declaration, the principle of effective participation has been affirmed in all the other instruments and procedures discussed in this paper[78] (ILO Convention 169, World Bank’s policies, HRC decisions, Inter-American Draft Declaration). Public participation is, in general, important for democracy and transparency in State decisions. One clear example of the rights of citizens to participate in decision-making is expressed in agreements that grant public rights of participation in project development through environmental impact assessment procedures.

"Public participation in environmental impact assessment procedures is a mechanism partly intended to ensure the full participation of the public and other potentially affected persons in decision-making related to projects likely to affect them and their environment. An environmental impact assessment describes a process which produces a statement to be used in guiding decision-making. Such assessments have emerged since the 1972 Stockholm Conference as an important international and domestic legal instrument for integrating environmental considerations into socio-economic development and decision-making processes".[79]

A real popular participation secures a sound scrutiny of the State’s decisions and strives to maintain the individual as the starting point and the final point of political decisions and development projects. This is fundamental to improve and enhance the State’s role as the guarantor of human rights in the process of globalisation and the loss of the State’s control within its borders.

In the case of indigenous peoples, participation is even more important since it expresses their right to affirm their cultural diversity and its intrinsic value. Nevertheless, participation alone is not enough; it has to be effective. This means taking into account cultural diversity in a way indigenous peoples’ participation is ensured. It means devising appropriate procedure that recognises the collective feature of indigenous peoples’ rights. Effective participation in a State, in whose territory live indigenous peoples, lays the basis for a democracy in line with international human rights standards.

At the national level, the recognition of the cultural diversity of indigenous peoples’ participation calls for the entrenchment of this recognition in the constitution. In the case of Chile, this could mean the elevation of the Ley Indígena to the constitutional level (to avoid conflict of supremacy with other laws), adding clear measures of protection and monitoring of the Mapuche (and the other Chilean indigenous peoples) land rights, and their right to effective participation. Other relevant steps would be the ratification of the ILO Convention 169 (pending in the parliament since 1991).

Finally, it seems important to conclude this paper recalling an element that should be at the basis of the principle of effective participation and of the other points mentioned here: the recognition of the special link that indigenous peoples have with land, with their land. The Pehuenche are strongly linked to their land already from their name, ‘people of the pehuen’, being the fruit of the pine tree that characterises their land. The land and the river have precise cultural references in their traditions, in this land are their ancestors and their sacred places, and the araucaria pine tree is also at the centre of their religious rites. The land is one precise territory non-exchangeable with others. This argument can be used for the Mapuche in general and for many other indigenous peoples. The importance of the land has been recognised in ILO Convention 169, in the UN Draft Declaration, in some HRC’ decisions and in the General Comment about Art. 27.[80] Also, the World Bank recognised this cultural value in its guidelines, while the Bank’s President confirmed this value in its 1999 ‘Proposal for Integral Development’[81] This addresses the relevant task of giving substance to the cultural implications of land for indigenous peoples.

It is fundamental to underline how land is included in a holistic vision of life that contains all the elements of the environment (the sky, the mountains, the river, the sun, the rain, the trees, the animals) and the human beings (the living and the dead, the ancestors) without distinction. The cultural value that land assumes for indigenous peoples makes it impossible to resettle them without destroying their traditions, their spiritual life, their collective memories and their knowledge. Accepting this means the recognition of the right to cultural diversity (clearly having in mind international human rights standards). This value should be at the basis of the redaction of codes of conduct for TNCs, policies for lending agencies and international instruments imposing obligations to the State. The cultural value of indigenous lands is the most important justification for their right to effective participation and it strengthens the principle of free and informed consent.

"When the government took our land ... they wanted to give us another place ... but the State, the government, will never understand that we do not have another place to go ... The only possible place for (indigenous) people to live and to re-establish our existence, to speak to our Gods, to speak our nature, to weave our lives is where our God created us ... We are not idiots to believe that there is possibility of life for us outside of where the origin of our life is. Respect our place of living, do not degrade our living conditions, respect this life ...The only thing we have is the right to cry for our dignity and the need to live in our land".

[1] UN Doc. E/CN.4/Sub.2/1997.17, para. 52.

[2] For a deeper understanding of Mapuche’s religion, See: Foerster G. R., Introducción a la religiosidad Mapuche, Editorial Universitaria, Santiago, 1993.

[3] Jaña D., Las estructuras religiosas Mapuche-Pehuenche y su influencia en las acciones locales Abisua, Febrero 1998, pp. 26/27.

[4] The Pehuenche is the Mapuche group affected by the dams on the Biobío river. The next paragraph will analyse in depth this case.

[5] "As in the case with many indigenous cultures, the relationship of the Mapuches to the land is much different from that envisioned by the Western Europeans who came to rule Chile. For the Mapuches, as for many indigenous peoples, the land is a living thing. Moreover, the Mapuche concept of land is not limited to the physical elements. When the Mapuche talk of land or «Mapu», they are referring not just to the physical soil and the plants that grow there, but to a multidimensional metaphysical and spiritual sphere that extends upward to the sky, downward to the center of the earth, and outward beyond the physical space to the spiritual. The term «earth» or «land» refers not only to geographic physical space, but to a philosophical space as well, one that represents the essence of the Mapuche cosmology of good and evil." Worthen K.J., The role of indigenous groups in constitutional democracies: A Lesson from Chile and the United States in: Cohen C.P. (ed.), The Human Rights of Indigenous Peoples, Transnational Publishers, New York, 1998, pp. 241/242.

[6] Jaña D., Las esctruturas religiosas ..., supra note 3, pp. 27/28.

[7] Jaña D., Las centrales hydroélectricas en el Río Biobío de Chile y la lucha del pueblo indígena Pehuenche, Abisua, Julio 1997, p. 30.

[8] Johnston B., Turner T., The Pehuenche, the World Bank Group and Endesa S.A. violations of human rights in the Pangue and Ralco dam projects on the Bío-Bío River, Chile, Report - Committee for Human Rights of the American Anthropological Association, March 1998, p. 10.

[9] The World Bank comprises four quasi-autonomous institutions that nevertheless share a common President and personnel office. IBRD and IDA comprise the World Bank proper. Together with the Multilateral Investment Guarantee Agency (MIGA) and the International Finance Corporation (IFC), which is legally, financially and operationally separate from the World Bank, they make up the World Bank Group. The former two lend to national governments. The latter two lend to the private sector, with the IFC making direct loans to private corporations, while the MIGA deals with loan guarantees.

[10] Johnston B., Turner T., supra note 8, p. 7.

[11] International Finance Corporation, Terms of Reference for an Interim Evaluation of the Pehuen Foundation, July 26, 1995.

[12] See next paragraph.

[13] Downing T., A participatory Interim Evaluation of the Pehuen Foundation, prepared for the International Finance Corporation (the IFC has requested that it be made clear that this report is not an IFC official document.), May 1996.

[14] Johnston B., Turner T., op. cit., p. 17.

[15] See: Hair J.D., Dysart B., Danielson L.J., & Rubalcava A.O., Pangue Hydroelectric Project (Chile): An Independent Review of the International Finance Corporation’s Compliance with Applicable World Bank Group Environmental and Social Requirements, 1997.

[16] IFC explained that, since the report contains affirmations regarding Pangue S.A. and information regarding ENDESA, the disclosure of this part of Hair’s report would break IFC’s obligation of confidentiality to Pangue S.A. and ENDESA. See: Letter of World Bank’s President J.D. Wolfensohn to Ms. Andrea Durbin of Friends of the Earth, June 2, 1997, in IRN web-site: http://www.irn.org/programs/biobio/9/0602letter.html.

[17] International Rivers Network, Bio Bio Fact Sheet, web-site: http://www.irn.org/programs/biobio/bbtact.html.

[18] Downing’s statement to the CfHR of the American Anthropological Association, see: Johnston B., Turner T., supra note 8, p. 17.

[19] Energy Research Program at the University of Chile, the International Institute for Energy Conservation (Latin American Office, Santiago) and the Natural Resources Defense Council (NRDC) of the U.S., released May 9, 1996.

[20] "Las condiciones del financiamiento exigían varias obligaciones por parte dei Pangue S.A. y ENDESA, su empresa madre, en las áreas de impactos ambientales y sociales. Siento informarte que ENDESA parece haber tomado una posición poco constructiva respecto a sus obligaciones ambientales y sociales, en particular respecto a la preparación de un estudio de impactos acumulativos satisfactorio para su proyecto Ralco, y está en una situación de inminente mora, de acuerdo a los compromisos financieros adoptados con la CFI." Letter of World Bank’s President J.D Wolfensohn to Chilean Finance Minister Eduardo Aninat, in Diario Electrónico de Copesa, web-site: http://www.copesa.cl/Casos/Endesa/Carta2.html.

[21] Mendoza L.; Presidente inauguró hidroeléctrica en el Alto Bibío: Frei defendió construccíon de centrales Pangue y Ralco, Noticias/La Epoca Internet/Chile, año 1, Nº 316, Jueves 7 de marzo 1997.

[22] "De acuerdo a lo constatado en nuestros estudios en terreno, este impacto cultural sería de tal magnitud para las comunidades afectadas, que dificilmente podría ser mitigado o compensado a través de las medidas propuestas por CONAMA". Instituto de Estudios Indígenas, Universidad de la Frontera, Temuco, La Resolucion de Conama sobre el proyecto hidroeléctrico Ralco y los Mapuche Pehuenche, 15 de junio de 1997, in Rehuen Foundation web site: http://www.xs4all.nl/~rehue/ralco/ral024.html.

[23] For the Indigenous Law 19253 see Chilean Congress’ Library, web-site: http://www.congreso.cl/biblioteca/biblioteca.html.

[24] See paragraph 2.2.

[25] This transaction, known in Chile as El negocio del siglo, caused a financial scandal with an ensuring intervention of the Chilean State. See: Castillo R., Fernández G., ENDESA acusada de etnocidio en Chile, Articulo 20, no. 5, 21 diciembre 1998.

[26] Berger T.R., Katz C., Los Mapuche-Pehuenche y el proyecto hidroelectrico de Ralco: un pueblo amenazado, FIDH, Chile, marzo 1998.

[27] Ibid., p. 17.

[28] Johnston B., Turner T., supra note 8.

[29] Downing T., supra note 13.

[30] International Finance Corporation, Terms of Reference for An Interim Evaluation of the Pehuen Foundation, July 26, 1995.

[31] Johnston B., Turner T., supra note 8, p. 26.

[32] "Presidente de Banco Mundial reconoce mala evaluación de la central Pangue", La Epoca, Santiago, Año 2, N. 722, 20 de abril, 1998.

[33] La Tercera (Copesa-Chile), 12 de mayo, 1999.

[34] "… La resolución señala que: «de la inspección ocular, el tribunal ha concluido que en la zona que abarca el Estudio de Impacto Ambiental, actualmente se están realizando obras que revisten el carácter de definitivas u obras civiles mayores, en contraposición a las obras preliminares que se autorizaron en principio … Si se tiene presente que el objetivo de toda medida cautelar es asegurar la eficacia del proceso y prevenir, precaver o evitar un riesgo o peligro, derivado de la tardanza con que, por imposición del derecho se deba cumplir su cometido principal, debemos presumir que, de aceptarse la continuación de las obras, atendida su magnitud, ello haría ilusorio el derecho pretendido por las demandantes, de ser nula la Resolución Exenta N. 010/97, que aprobó el estudio de Impacto Ambiental, ya que el daño ambiental sería irreversible y sería el antecedente de innumerables perjuicios a quienes han hecho de la zona su hábitat», La Tercera (Copesa-Chile), 9 de Septiembre 1999.

[35] Diario El Sur, 20 de febrero, 2000.

[36] Diario El Sur, 1 de abril, 2000.

[37] The Convention on Biological Diversity, ratified by Chile in 1994 and the other UNCED documents do not provide legal means that Pehuenche could use to have their case considered by an international body.

[38] UN Human Rigths Committee, General Comment No. 23 (50) on Article 27 (Minority Rights, 6-4-1994), para. 7.

[39] Communication N. R 6/24, UN GAOR, 36th Sess., Supp. N. 40, at 166, UN Doc. A/43/40, Annex 18, opinion approved in 1981.

[40] Communication N. 197/1985, UN GAOR, 43rd Sess., Supp. N. 40, at 207, UN Doc. A/43/40, Annex 7(G), opinion approved in 1988.

[41] Ominayak, Chief of the Lubicon Lake Band v. Canada, Communication N. 167/1984, UN GAOR, 45th Sess., Supp. N. 40, vol. 2, at 1, UN Doc. A/45/40, Annex 9(A), opinion approved in 1990.

[42] Mikmaq People v. Canada, Communication N. 205/1986, UN GAOR, 47th Sess., Supp. N. 40, at 200, UN Doc. A/47/40, Annex 9(A), opinion approved in 1992.

[43] Communication N. 431/1990, UN GAOR, 50th Sess., UN Doc. CCPR/C/50/D/431/1990, opinion approved on 24 March 1994.

[44] Communication N. 511/1992, UN GAOR, 52nd Sess., UN Doc. CCPR/C/52/D/511/1992, opinion approved on 8 November 1994.

[45] Ibid., para. 9.3.

[46] Communication N. 671/1995, UN GAOR, 58th Sess., UN Doc. CCPR/C/58/D/671/1995, opinion approved on 30 October 1996.

[47] Ibid., para. 10.7.

[48] Communication N. 549/1993, UN GAOR, 60th Sess., UN Doc. CCPR/C/60/D/549/1993/Rev.1, opinion approved on 29 December 1997.

[49] Ibid., para. 10.3.

[50] See note 37.

[51] UN Doc. E/CN.4/Sub.2/1983/21/Add.8.

[52] "The use of the term ‘peoples’ in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law", ILO Convention 169 ‘Concerning Indigenous and Tribal Peoples in Independent Countries’, 1989, art. 1(3).

[53] Anaya S.J., Indigenous Peoples in International Law, Oxford University Press, New York, 1996, p. 162.

[54] World Bank OMS 2.34, 1982, para. 6.

[55] World Bank OD 4.20, 1991, para. 3.

[56] Ibid., para. 5.

[57] Ibid., para. 8.

[58] See note 9.

[59] The case considers an attack by Suriname soldiers on a group of twenty males from the Sarima Tribe of Maroons, and the killing of seven of these males.

[60] Fabra A., Indigenous peoples, environmental degradation and human rights: a case study in: Boyle A.E. & Anderson M.R. (ed.), Human Rights Approaches to Environmental Protection, Clarendon Press, Oxford, 1996, p. 250.

[61] Ibid., p. 262.

[62] See: Hannum H., The protection of indigenous rights in the Inter-American system, in: Harris D.J: & Livingstone S. (ed.); The Inter-American system of Human Rights, Clarendon Press, Oxford, 1998, p. 328.

[63] Johnston B., Turner T., supra note 8, p. 34.

[64] Goldsmith E., Development as colonialism, in: Mander J. & Goldsmith E.(ed.), The case against the global economy, Sierra Club Books, San Francisco, 1996, p. 265.

[65] The repayment of the IFC’s loan by ENDESA and the funding by Germany’s Dresdner Bank raises the issue of ensuring better compliance by private banks. Various NGOs allege that Dresdner Bank is not conforming to the commitments undertaken by its country, alone or as member of the European Union. Furthermore the German Bank is a signatory of the UNEP Declaration of Banks for Environment. However, a more strict code of conduct should regulate private banks’ activities, leading to the incorporation of World Bank-like policies and guidelines.

[66] "Strengthening the Legal and Institutional Framework for Environmental Protection and Sustainable Development", Report of the Expert Group on Environmental Law to the World Commission on Environment and Development, August 1986.

[67] UN Doc. E/CN.4/Sub.2/1994/40; 15/6/1994, para. 21/22.

[68] UN Doc. E/CN.4/Sub.2/1997/14, Annex, 13/8/1997.

[69] Johnston B., Turner T., supra note 8, p. 31.

[70] Ibid., p. 32.

[71] "Presidente de Banco Mundial reconoce mala evaluación de la central Pangue", La Epoca, Santiago, Año 2 No. 722, 20 de abril, 1998.

[72] Johnston B., Turner T., supra note 8, p. 27.

[73] IFC Doc., Procedure for Environmental and Social Review of Projects, December 1998, para. 1, web-site: http://www.ifc.org.

[74] Ibid., para. 2.

[75] In its decision 1992/255 of July 20, 1992, the Economic and Social Council requested United Nations bodies and specialised agencies "to ensure that all technical assistance financed or provided by them is compatible with international instruments and standards applicable to indigenous peoples" and encouraged "efforts to promote coordination among organizations of the United Nations system and greater participation of indigenous peoples in the planning and implementation of projects affecting them".

[76] Johnston B. & Turner T., supra note 8, pp. 25/26.

[77] UN Doc. E/CN.4/Sub.2/1997.17, para. 42.

[78] The Human Rights Committee reporting on the situation in Chile to the General Assembly on 1999 affirmed: "When planning actions that affect members of indigenous communities, the State party must pay primary attention to the sustainability of the indigenous culture and way of life and to the participation of members of indigenous communities in decisions that affect them", Human Rights Committee report to the General Assembly in its 54th session. UN Doc. A54/40, Supplement No. 40, Volume 1, point 218, 21 October 1999.

[79] Sands P. & Werksman J., Procedural aspects of international law in the field of sustainable development: citizens' right, in: Ginther K., Denters E. & de Waart P.J.I.M. (ed.), Sustainable Development and Good Dovernance, Martinus Nijhoff Publishers, Boston, 1995, p. 188.

[80] UN Human Rigths Committee, General Comment No. 23 (50) on Article 27 (Minority Rights, 6-4-1994), para. 7.

[81] "Creo que no puede haber un verdadero desarrollo nacional si no se preservan la historia y la cultura de los pueblos, sobre todo en un nuevo medio globalizado, en el que hay presión para imponer la ‘uniformidad’ en todos los países", Wolfensohn J.D., Propuesta de un marco integral de desarrollo, World Bank, Washington, Enero 1999, p. 17.

[82] Shutkin W.A., International human rights law and the Earth: the protection of indigenous peoples and the environment, Virginia Journal of International Law, Vol. 31, no. 3, Spring 1991, p. 490.