Mapuche communities during the agrarian reform and those that are claimed as part of the
ancestral lands prior to the reduction process” stood out.88
87.
In its 2003 Report, the Commission for the Historical Truth and New Deal with the
Indigenous Peoples made various “proposals and recommendations” related to the claims of the
Mapuche people, among which it indicated that “reparation mechanisms should be created and,
insofar as possible, for restitution of the Mapuche lands when, based on the background
information, this is justified,” and also that “[i]t is the duty of the State […] to institute
mechanisms for evaluating these demands and meeting them when they are justified,” and
“[s]ettling the claims of the indigenous peoples while respecting the integrity of the personal
assets of the actual owners.” In this regard, the Commission insisted that “the land claims of
the indigenous peoples and communities” must be dealt with promptly; to the contrary,
“frequent and permanent conflict would be encouraged.”89
88.
At the beginning of the decade of 2000, Law No. 19,253, the so-called “Indigenous
Peoples Act” was in force; it had been enacted in 1993 and established norms “for the
protection, promotion and development of the indigenous peoples.” Matters relating to
property, culture, education, political participation and development, as well as mechanisms for
access to indigenous lands and waters were regulated by this law, as well as the creation of the
National Development Corporation (CONADI), responsible for the administration of the
indigenous peoples’ land and water fund. The fund “operates through two mechanisms […]: (a)
subsidizing the purchase of lands in order to extend them, and (b) the direct purchase of
“disputed lands.’”90
89.
On September 15, 2008, Chile ratified Convention 169 of the International Labour
Organization concerning Indigenous and Tribal Peoples in Independent Countries. According to
the report of James Anaya, as United Nations Special Rapporteur on the situation of human
rights and fundamental freedoms of indigenous people, the ratification and entry into force of
this Convention “help[ed] to strengthen the legal framework to guarantee rights and guide the
State’s public policies concerning the indigenous peoples.”91
90.
Despite the existence of this legal framework and of the actions that the State undertook
within it such as purchasing land and delivering it to Mapuche communities, several bodies and
special procedures of the United Nations and the above-mentioned Commission for the
Historical Truth and New Deal for the Indigenous Peoples, as well as different types of evidence
have all indicated that the State’s response to the Mapuche indigenous people’s land claims has
been slow and lacks an effective mechanism.92 In this regard, in his final report on his visit to
88
Cf. Report of the Historical Truth and New Deal Commission, Volume III, Tome II, Chapter II, p. 717 (file of helpful
evidence presented by the State, folio 958).
89
Cf. Report of the Historical Truth and New Deal Commission delivered to Ricardo Lagos Escobar, President of the
Republic at the time, on October 28, 2003, pp. 575, 576 and 578.
90
Cf. Report of the Constitutional, Legislative and Justice Committee on the Senate’s mandate “regarding the Mapuche
conflict in relation to public order and security in certain regions,” Bulletin No. S-680-12, July 9, 2003, p. 144 (file of
annexes to the Merits Report 176/10, annex 4, folios 226 and 227), and UN Doc. A/HRC/12/34/ Add.6, 5 October 2009,
Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James
Anaya, Addendum, The situation of indigenous peoples in Chile: follow-up to the recommendations made by the previous
Special Rapporteur, para. 24 (file of annexes to the Merits Report 176/10, annex 12, folio 434).
91
Cf. UN Doc. A/HRC/12/34/ Add.6, 5 October 2009, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya, Addendum, The situation of indigenous peoples in Chile:
follow-up to the recommendations made by the previous Special Rapporteur, para. 6 (file of annexes to the Merits Report
176/10, annex 12, folio 429).
92
Cf. UN Doc. A/HRC/12/34/ Add.6, 5 October 2009, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya, Addendum, The situation of indigenous peoples in Chile:
follow-up to the recommendations made by the previous Special Rapporteur, para. 24 (file of annexes to the Merits Report
176/10, annex 12, folios 434 and 435); UN Doc. E/CN.4/2004/80/Add.3, 17 November 2003, Report of the Special
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