February 8, 2012 | Posted by: Laura Seelau & Ryan Seelau
In the past week, you may have noticed a large number of reports discussing indigenous peoples going to the courts. For example:
Likewise, there have been news reports on cases that have been recently decided by Chilean courts. For instance:
Whether this flood of news reports on indigenous cases (and there have been many more than those listed above) reflect more cases being filed or just more coverage of indigenous issues isn’t entirely clear. That said, what is clear is that the judicial system —and courts in particular— play a crucial role in the indigenous rights dialogue. Sometimes the court’s role opens up doors and opportunities for indigenous peoples, and other times the court can reinforce practices and systems that make indigenous peoples the most marginalized group in Chilean society. Cases from the last year demonstrate both extremes.
Chile's Supreme Court Building. Photograph by Alstradiaan.
One example where the Chilean courts have seemingly played into stereotypes and prejudices that exist with respect to indigenous peoples are the Antiterrorism Law cases decided last year. The facts of the litigation are extensive and disputed, but it is safe to say that there were four Mapuche individuals who were charged with crimes under Chile’s Antiterrorism Law. The Antiterrorism Law was put in place during the dictatorship and, until recently, had not been altered since its creation. Initially, after the return to democracy, the Law went unused. But sometime in the early 2000s, the Government began charging Mapuche individuals —and generally only Mapuche individuals— under this Law.
Being charged under the Antiterrorism Law meant that the four Mapuche individuals could be kept in prison indefinitely without charges being brought against them and, when trials did finally begin, “secret witnesses” —meaning witnesses whose identities were never known to the defendants— could testify. This is precisely what happened to the four Mapuche men. Ultimately, the court decided that the men’s actions did not qualify as terrorism, which would initially seem like a positive decision. However, the Supreme Court in making its decision would not grant the Mapuche individuals a new trial without the secret witnesses participating and did nothing to condemn the use of the Antiterrorism Law in the first place. As such, it has been argued that the Supreme Court further fed into the stereotype found in the media that portrays Mapuche people as violent, and also ignored the discriminatory manner in which the Antiterrorism Law was being applied in Chile.
On the other hand, however, sometimes courts can be the vehicle for getting an indigenous right recognized or furthering strengthening it. For instance, the right to indigenous consultation has existed in Chilean law since 2009, but indigenous communities have struggled mightily to get the Chilean Government to take the right seriously. That said, for at least one community, the Chilean Supreme Court helped turn that right from something written on paper to something that had meaning in people’s lives. Last July, the Supreme Court ordered COREMA (a regional environmental ministry) to consult with the Atacameño communities near San Pedro on a regulatory plan that was about to be put in effect. The decision gives the communities most affected by the plan a chance to be heard on how their lives are going to change and to provide input that may lead to better solutions to development in the area.
These two major cases from last year demonstrate what all attorneys are trained to remember: courts can be great tools to change society, but they can also be enormous obstacles to doing the same. For indigenous peoples in Chile thus far, the courts have fulfilled both of those roles.
Source: I Love Chile