miércoles, 9 de julio de 2014



1. Regarding the announcement of the Ministery of Public Works about the will to handle the granting the Chilean National Parks to private entities, the Kawésqar community presents their astonishment and disbelief about this announcement.

2. This news comes from a Chilean Government entity that is truly not concerned about Environment and Culture Protection --it claims itself the right of setting the availability of our National Parks in the future by dismissing the Chilean Government management of them--. This reminds us the most perturbing precedents of privatization ever set in Chile.

3. Let’s see the case of the National Parks in Magallanes. There, private entities have tried multiple approaches in order to get to manage them, this to change the way they are managed and turn them into spaces suitable for private business.

4. We oppose those intentions. The people from Magallanes have not been asked about those decisions, and have ancestral rights on those lands, inalienable and eternal rights on these lands. Thus, it calls out the attention that the spokesman of the Ministry of Public Works chooses a newspaper from Santiago to announce their unwise intentions.

5. We recommend Mr. Galilea that he should remember the predation of natural resources is mostly by private interests. The fish, woods, and waters of these lands have been invariably affected by the same people that Mr. Galilea pretends to benefit when he grant them our lands; a formula otherwise aged that is no longer needed in a world that seeks new and better forms of managing the legacy of our ancestors.

6. From this very moment, we announce that we will coordinate our opposition together along other ethnic groups from the Magallanes region and from the entire country. We will get together to stop this new attempt against the natural and cultural heritage that affects us directly. We will insist about this in the presence of all national and international entities, if the government continues their intent on not to acknowledge our rights over our ancient lands. The Government of Chile must finish these practices, because they disregard the international commitments, which only discredit, annoy, and complicate relations between the native people and the authorities of this Government.


miércoles, 21 de mayo de 2014



Background. We, the Kawésqar represent the last vestige of the ancient people of the Patagonian fjords and channels. Until today we have survived policies of genocide and ethnocide, the predation of our resources, and cultural, social and economic marginalization.
Today we are live in a single community, established in the village of Puerto Edén, on the shores of Wellington Island, in the South of Chile (49° 08' 20" S - 74° 27' 10" W). Our only means of communication with Chile´s urban centers is by sea.
Our village is located in the Bernardo O'Higgins Park, the largest in the country, which has a rich biological diversity, the source of our culture. Nearby is the Southern Patagonian ice field, the largest reserve of fresh water in the southern hemisphere, after the Antarctic. To the Southeast lies the Torres del Paine National Reserve, one of the main tourist attractions of South America´s Southern Cone.   
The Patagonian channels are cold and brackish waterways. They are the source of important marine resources - fish, molluscs, crustaceans and marine mammals, which have been used since time immemorial for the livelihood of our people-
The KAWÉSQAR Canoe people. Of the four indigenous peoples of Patagonia, only two have survived. The Kawésqar people, whose community is seated in Puerto Edén, and the Yagan people, settled in Puerto Williams. As a result of the implementation of a livestock economy within their territories, the land hunting peoples, the Aonikenk and Selk'nam were exterminated in a shameful process riddled with crime. 
Our canoeist cultures were able to deal more successfully with the irruption of Chilean society, given our greater geographic dispersion, high mobility, and because we represent marginal competition for Western interests. However, politics of sedentarisation developed by the Chilean authorities, as well as the introduction of doctrines and 8 ethical concepts foreign to our communities, lead to the progressive abandonment of our traditional practices. Today only one Kawésqar community survives, based in Puerto Edén, with 8 people who keep the culture of our people alive.
Our status as peoples linked to the marine environment is not included within the indigenous policies implemented by the Government of Chile. Chilean indigenous legislation has a strong terrestrial bias, lacking effective instruments for supporting maritime indigenous peoples. While significant resources are destined to land recovery, there are no parallel mechanisms that enable the effective occupation of the marine spaces and their resources. Furthermore, growing industrial aquaculture and tourism threaten with the appropriation of our spaces, which are only protected today because they are within a nature reserve.
Conditions and livelihoods. The Kawésqar community of Puerto Edén lives in conditions of extreme isolation. Year by year this increases our material poverty and the socio-economic and socio-cultural precariousness of our people. This contrasts with the fact that we live in an environment which is highly attractive in terms of natural resources, biodiversity and the possibilities for generating productive and culturally and environmental sustainable initiatives.
Our demands can be summed up as the following:
a)     Affirmation of rights: over the ancient, coastal and terrestrial territory and its resources; and over our traditional and cultural production, in accordance with the Chiles´ commitments with the international community.
b)     Effective access to our resources: recognition of the maritime and terrestrial particularity of our culture and of the use of our resources.
c)     Access to technologies: the right to benefit from technological advances and adapt them to our ancestral practices, ensuring access to these advances.
d)     Training of people: implementing programmes consistent with our culture for the training and development of our community.

Translated from Spanish by Sally Hinds.

martes, 28 de mayo de 2013



1. - The Kawesqar Community that resides in Puerto Eden are the last practitioners of their culture. They are 14 people who have fought for the preservation of their way of life, and are one of the surviving populations from an extensive process of Colonial-era ethnic cleansing in Patagonia.

2. - As a clear Minority Group of indigenous people, they hold secure a series of Human Rights as Chile has ratified ongoing International Treaties, giving the State an obligation to enforce and comply. We will describe several relevant standards that must be considered when modifying the law, under the risk of violating indigenous rights and compromising international law.

3. - The main rights of indigenous people -specifically Kawesqar- that are relevant in the Law's draft, is the Right to consultation and protection and access to natural resources that are considered their territory.

4. - This Right to Consultation is provided in Treaty N° 169, Article 6, which states: "In applying the provisions of this treaty, governments shall consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is given  to legislative or administrative measures which may affect them directly" This consultation should be made when handling Law N° 18992 as it directly regulates the exploitation of aquatic resources, to which Kawesqars have traditionally had access. Thus, it is needed to be evaluated because they hold the right to use those resources too for regular subsistence.

5. - It should be noted that the present instance, to which I was summoned, does not constitute consultation as provided for in the Convention 169 of the ILO and international practice on the matter, which is already international custom. All inquiries must comply with the following international standards: elladebe made in advance, is not limited to mere infofrmation, should be done in good faith in a process that builds trust between the parties, be appropriate and through indigenous representative institutions, be systematic and transparent, as well as having a wide scope to all decisions that may affect indigenous peoples. There is then a gap between a rationale for our position and effective consultation on legislative matters such complex scientific, technical and anthropological as to which refers the bill.

6. - Regarding the protection of natural resources, it should be noted that the that the Kawesqar Community resident to Puerto Eden, has as one main activity: the extraction of marine resources, and legislative action to regulate these resources must be previously consulted with and to the community because of how involved is their culture. Both current and historical antecedents ratify the above, Kawesqars have been characterized by its close relationship to the maritime territory for thousands of years, which currently still haves various manifestations, being one of the most important, their rights to fish.

7. - This ancestral right to access the resources of the sea, is referred to in Articles 13, 14 and 15 of Convention No. 169 concerning the protection and preservation of access to resources that are in our territories. In addition, the United Nations Declaration on the Rights of Indigenous Peoples in 2007 in Articles 26, 27 and 32, enshrines those rights. Furthermore, the International Covenant on Civil and Political Rights, 1989, Article 27 enshrines the right of ethnic minorities to their own culture. In relation to this article, is transcendental to refer to the statement reiterated the Human Rights Committee of the United Nations, which has indicated that the cultural life of a people is expressed in the use of resources, and specifically mentioned including fishing and hunting, and the right to live in reserves protected by law.

8. - In addition to that the committee has recurrently known of similar cases to Kawesqars, and we must agree to state three basic issues regarding the rights of coastal people:

a) That Fishing is protected under Article 27 of the International Convenant on Economic, Social and Cultural Rights.

b) There are laws that can interfere with the exercise of rights under this article.

c) Only a well informed process of broad participation may authorize the affected communities establishing regulations on the rights emanating from the article, but without being a waiver of those rights.

9. - Administrative measures should be implemented to make sure that the Rights of the fishing village of Kawesqars are respected and that it is an ancestral and traditional premise for them to access their maritime territory, because of subsistence and traditional activities that they develop, and also to have access to marine resources to serve their community, as stated in Article 14 of the Convention 169 of UNILO.
10. - To conclude, it is important to emphasize that is expected that the Right of Consultation is respected and actually applied during the Amendment of this Law, thus complying with the mandates of the Treaty in force. Throughout this consult process the Rights of the Kawesqars as original people from this territories comply with the use of Natural Resources for all.



After analyzing the Draft Under Articles 6 and 7 of Convention 169 of the ILO, the Kawesqar Community Resident in Puerto Eden, linguistically and culturally recognized as Living Human Treasures, by UNESCO and the Government of Chile has no choice but to reject  this project for the following reasons:

1. The project is unconstitutional. It assumes powers to restrict central aspects of Convention No. 169, ignoring that it is protected by the provisions of Article 5 of the Chilean Constitution.

2. The project is illegal. To access Rights to consultation and participation, it establishes requirements not covered by Convention No. 169. In cases of investment projects, it gives the right to query to the regular system of common procedures on Environmental Impact Evaluation, which is in no way authorized by the agreement. It also has processes not covered by it, which undermines these rights and alters the traditional representation forms of our communities.

3. The project is inappropriate. It places the communities of the Magallanes Region and Chilean Antarctica at transnational aquaculture and tourism mercy of interests, by excluding the investment projects of the consultation process, subjecting  to consultation regime only the matters of Environmental Impact Evaluation. For our communities (strongly linked to the coast and its resources) this is a direct attack on their traditions, practices and rights.

4. The Government of Chile questions his own honor and its obligations with the international community. To impose this regulation on the territory of  Chile it will incur in international responsibility



Convention N° 169 of the International Labour Organization (ILO) was ratified by Chile on September 15th, 2008, published on October 2nd, 2008 and the article was published in the Official Journal on October 14th, 2008.

This instrument  is an international treaty to be governed by own rules and particularly by the rules of Article 5, Art. 32 N° 15, and Art. 54 N° 1 of the Chilean Constitution.

Under Article 31 of the Vienna Convention on the Law of Treaties of 1969, and of which Chile is also a party, any treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in its context and taking into account the object and purpose. The same article provides that, in addition, this should be understood also in its preamble and annexes.

Indeed, the preamble of the N°169 Convention provides that it is agreed that in many parts of the world, indigenous people are unable to enjoy basic Human Rights as the rest of the population, as they live with their laws, values, customs and perspectives because the have not been eroded. The text of the Convention itself and its references to the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and international instruments on the prevention of discrimination, make sure that this convention is considered within the catalog of international instruments of Human Rights protection.

Is in this way, that provisions of the final paragraph of the 5th Article of the Chilean Constitution can be used: it is Government's duty to respect and promote the fundamental Rights that emanate from the individuals, these are guaranteed by the Constitution and international treaties ratified by Chile that are in force. One of these agreements is precisely Convention N°169.

Therefore, the treaty haves a constitutional character and requires State agencies to address to their terms. Any action outside of what the same instrument authorizes implies an incurable case of nullity of public law. This is guaranteed by the 7th Article of the Constitution of the Republic of Chile, saying that no magistrate, no person or group of people can be attributed, even on the pretext of extraordinary circumstances, any authority or rights than those expressly conferred upon it by the Constitution or laws. It adds that any act in violation of any such provision is null and rise to the liabilities and penalties established by law.

Neither the text of Convention No. 169 nor its promulgation appears authorization act for the Government of Chile appropriate to repeal, modify or suspend its provisions. Therefore, any change is void and of no value, since the provisions of the fifth paragraph of paragraph 1 of Article 54 of the Constitution of the Republic of Chile. And you need to understand that a restriction on the scope of the rules of the Convention, in particular the right of consultation, is an improper modification of that international instrument.

Moreover, under Article 27 of the Vienna Convention on the Law of Treaties, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. The preeminence of international law over domestic law has also been declared in several judgments and advisory opinions of international jurisdiction: like in Alabama, 1872; Case of the Greco-Bulgarian Communities, 1930; PCIJ, Series B, No. 17, page 32.; Case of Polish Nationals in Danzig,1931; CPJU Series A / B, No. 44, p. 24; Case of the Free Zones, 1932;  PCIJ Series A / B, No. 46, p. 167 and Applicability of the Obligation to Arbitrate under the Headquarters Agreement of the United Nations, Case of the PLO Mission, 1988; ICJ Reports 1988, p. 12. Indeed, in the case of the Greco-Bulgarian Communities (1930), the Permanent Court of International Justice stated that "it is a generally accepted principle of international law in relations between Powers who are parties to a treaty, the provisions of law internal cannot trump those of the treaty. "Finally, Convention No. 169 does not require any rule of law to make it applicable. The instrument is self-executing, as we have stated the Superior Courts of Justice. It would be absurd to refer the legal scope of rights under the Convention to the regulatory power of the state itself in respect of which it intended to assert those rights. Neither the text nor the straight logic suggest that there should proceed to issue a regulation to implement the rights contained in this instrument.

From all the foregoing:

i) Convention No. 169 is within the international catalog of instruments to protect human rights;

ii) that according to the constitutional rules of Chilean law, he cannot be modified by acts of law;

iii) that any restrictive amendment thereof would result in a case of nullity of public law, which could be claimed on a national and international level.


These considerations should be taken into account when considering the draft regulation on consultations Convention N° 169, proposed by the Government of Chile.

First, IT is legally unnecessary and undesirable. Unnecessary, because it is self-executing an international instrument, which are not covered in any of its policies called the law of each state to make it applicable. It is a Drawback, because it will lead to a contentious Government on its scope in specific cases where it is intended to be applicable.

The project goes through concepts that turn to illegible as they are not covered by the Convention.

In its 2nd Article: The draft manages a Query concept that is not contained in Convention N° 169, here, the formula "mutual benefit" is wrongly introduced because between the Chilean Gov and native people exists an equal relationship. This undermines the very human rights system. The Inter-American Court of Human Rights has stated about this that:

"... Modern Human Rights treaties in general, and particularily, the American Convention, are not multilateral treaties of the traditional cut that are constructed to accomplish the reciprocal exchange of Rights for mutual benefit of the contracting States . Their object and purpose is the protection of the fundamental rights of human beings, regardless of nationality, both against their own state as compared to the other Contracting States. "(Inter-American Court of Human Rights, The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Articles 74 and 75), Advisory Opinion OC-2/82 of September 24, 1982)

The context and scope of Convention N° 169 is indicated in the text itself, it is intended to protect the rights of indigenous peoples and to guarantee respect for their integrity on the part of governments. It is therefore an obligation of the latter, governments, the provide for such purposes, which cannot be confused with compensation or mutual benefit formulas, which could make the worst practices incur compensatory damages to the identity and rights of our peoples.

Insistence on assimilations approach of native ethnic groups

Moreover, the assimilations approach of the draft regulations is evident in another set of proposed provisions in it. It is striking that he calls "investment projects" under the System of Environmental Impact Assessment, would be regulated by the consultation procedure of Law N° 19,300. Again here, the project incurred in illegality, the project goes beyond what the law authorizes, in this case  Convention N° 169. Chile's government is not allowed to play in this case, by analogy, the scope of the consultation process and equate them with procedures provided for environmental conservation purposes. None of the provisions of Convention N° 169 refers to a school of this type, and Convention N° 169 is the law of the Republic of Chile and is current public law.

Moreover, when Article 6 of Convention N° 169 concerning procedures "appropriate", this word should be given its natural and obvious sense, that is: "applied to everything what is proper and more convenient." (Dictionary of the Spanish Royal Academy of Language 22th edition (2001))

And appropriateness should apply to the object of protection under the Convention this is to protect the rights of indigenous peoples and to guarantee respect for their integrity. This object escapes process under the System of Environmental Impact Assessment, of Law N° 19300.

The ILO Manual on Convention N° 169,  states that for an "appropriate" query requirements must meet the needs of each specific situation, and must be meaningful, sincere and transparent. The assimilation procedure of Law N° 19.300 would be far from complying with the requirement to be appropriate to the specific situation of the respective indigenous communities.

Unduly excludes investment projects of query from Convention N° 169.

It is also clear that what we are looking a draft regulation that is left out of the assessment made by the communities of people with investment projects, as these are decisions with certain specifications. In fact, the aforementioned draft proposes regulation states that it applies only to legislative measures and general administrative orders. This distinction between measures of general administrative and legislative matters is of obvious contrast, including administrative measures, this is not mentioned anywhere in any of the  provisions of  Convention N°169.

Again this is a illegality option of the proposed project. It happens, however, that the special administrative measures are the most harmful effects and Kawesqar ethnicity is more that ever involved, for this is the relationship with the coastal and marine environment which is elementary for our people. It is in this environment where the Government provides extensive maritime and aquaculture concessions, often to particular corporations or industrial companies that perform intensive farming in our territories, and these are cases of special administrative measures, or fall outside the consultation process, or at best times it would be subject to the assimilatory scheme of Law N° 19.300.

Induces wasteful procedural traps.

Through it seeks to impose a definition of the terms "direct concern" caused by the measures likely to visit. In Article 6 of Convention N°169 provides consultation with the people concerned and this shall be "each time given to legislative or administrative measures which may affect them directly." However, illegally and arbitrarily, the Government introduced a rating to this formula, by requiring that "involvement" is "significant." Then listed cases in which it is understood that there will be such "significant damage." It is understood, however, whether these are cases in which the law presumes that such an effect exists, or if it is just a legal presumption in which may argue against such a presumption. Because, under a legal technique unfortunate, in each case again uses the word "significant" implying that even in them, a third party may invoke - now inside the case - that the species question would not be met, hypothetically, the status of "significance." With this, the position of indigenous peoples affected by a measure, to see, first restricted, then threatened by the definition tautological, & circular, this formula: direct involvement / significant involvement: a third party involved may bring the matter to a court of the State of Chile, arguing that the measure has no significant effects, and end by subtracting the decision on the scope of a measure of the consultation process itself should been made to the community directly affected. The consultation process may thus be a futile exercise, which will respond to the Government of Chile, also forcing communities to test the significance of the planned intervention in wasteful legal proceedings, which were not even remotely under the Convention. This opens the door wide to the national picaresque in its various forms.

Needless to say that such a reference to the "significance" of involvement appears not mentioned in any provision of the Convention N° 169. Therefore, the draft rules again incurs in illegality.

It is also clear that such significant involvement will be decided by the political authority of the Government of Chile. It will, then, abstract again the consultation process, which is precisely what seeks to define whether a particular measure has effects that are prized for their communities. Therefore, the project is entered in a field that is not its own, is therefore doubly illegal and arbitrary.

The forms for participating in the project alter traditional forms of representation.
Finally, the proposed regulation is also in charge of participation procedures. This introduces the concept of commissions, one national and other regional. This practice violates community representation on their own realities; going at this point precisely against the explicit provisions of Convention No. 169. Thereby disrupts the sense of participation, to the extent that she is willing to ensure equitable access to elective institutions and other representative and responsible for policies and programs that concern them. Convention does not address in any way the creation of intermediary bodies of participation, such as the draft regulations. The risk of politicization of this representation and the intrusion of corporate interests in indigenous policy is open and the project of the Government of Chile.


Examination of the core provisions of the draft regulations for consultation and participation of Convention No. 169 shows that it unduly restricts the scope and meaning of the right to consultation and disrupts the pattern of community representation. It is therefore a project queanuncia vices unconstitutionality and illegality.
The project, attempting to regulate those rights risks in trying to define to end restricting them, which is not competent to the regulatory powers of the Government of Chile. The substance of these rights in the Convention itself, as well as treaties, conventions and covenants on human rights declares that it is founded.
Therefore, the draft regulation is unconstitutional, illegal, inappropriate and is likely to be faced in the administrative and judicial branches, as well as nationally and internationally. So this indigenous community does not endorse or delegated representative to any person and any agreement taken under our name, will be completely unknown.