Discrimination against indigenous people in an unjust and provocative way has been taking place for some time in the Province of Jujuy.
In October 2014, for example, when Florencia Gelmetti was minister of education, professor Cristian González (Jatun Inti – indigenous name-), of the National School of Technical Education N° 1 of El Aguilar, was told that he should refrain from communicating with his students using Quechua words and teach them good nutrition using local products, such as Andean potato, mote or quinoa. In this way, fundamental aspects of indigenous law were attacked. The prohibitive intimation denied the cultural and linguistic identity of the teacher and the students.
In the aforementioned line, the New Constitution of Jujuy (NCJ) says: “Land is a working and productive asset”, (art. 94 inc. 1), this statement, which does not respect essential social values and also does not consider ancestral cultural patterns.
The concept prioritizes only working the land to extract products from it, an extractivist criterion of its resources, functional to justify, without greater care, mining ventures, such as lithium extraction.
The NCJ forgets to note that the earth is also where one lives, inhabits, where the roots that tie the generations are. This is fundamental to the concept of “Pachamama”, typical of indigenous culture. The Mother Earth in which we live implies the root of life itself, so it is very important to honor, care for and protect her, therefore, it is something more than work and production. For indigenous peoples, the common territory in which they live is part of their essential cultural heritage. Being from a place gives us the communal dimension of existence, it contains the past, which explains the present and projects the future of individuals and peoples. The earth is the living space that binds us in a common destiny. Human reality always involves a space and a time.
The aforementioned, moreover, is inextricably linked to the demand for “Land, Shelter and Work”, which is promoted by popular movements around the world.
At the same time, the earth cannot be considered as an individual thing, isolated from the need for a use that preserves the ecosystem that exists around it, such as water and biodiversity.
The NCJ adds, that “the law will regulate the administration, disposition and destination of the fiscal lands susceptible of productive use”” (art. 94 inc. 2). This reference, without the relevant clarifications of respect for the community possession and ownership of the lands, which are traditionally occupied by indigenous peoples, may mean a way of appropriating and disposing of territories, of ancestral possession, not yet formally regularized, which are listed as fiscal lands. According to the National Registry of Indigenous Communities, 298 Indigenous Communities have been identified in the province of Jujuy, belonging to seven indigenous peoples or ethnic groups of Atacama, Chichas, Guarani, Kolla, Ocloya, Omaguaca and Quechua. Of the 298 indigenous communities, 178 Communities have their territorial survey completed with an Administrative Resolution from the INAI, another 30 indigenous communities have the territorial survey in process and a group of 90 indigenous communities are without a territorial survey.
In this regard, the National Constitution (CN) says, that the ethnic and cultural pre-existence of the Argentine indigenous peoples must be “recognized. Guarantee respect for their identity and the right to a bilingual and intercultural education; recognize the legal personality of their communities, and the community possession and ownership of the lands they traditionally occupy … none of them will be alienable, transferable or susceptible of encumbrances or embargoes. Ensure their participation in the management of their natural resources and other interests that affect them…”, (art. 75 inc. 17).
The aforementioned is completed by article 18 of the Civil and Commercial Code, which states: “Recognized indigenous communities have the right to community possession and ownership of the lands that they traditionally occupy and those that are suitable and sufficient for human development.”
The aforementioned article 94 of the NCJ, together with article 95, which regulates the water regime, are unconstitutional and unconventional since, in their treatment in the reform, due consultation with indigenous peoples as interested parties was omitted, in the various issues that affect them in a direct way, they are linked to the territory and the traditional use of it by indigenous communities is not contemplated.
Nor do the aforementioned articles comply with the parameters of interculturality required by article 6 of Convention 169 of the International Labor Organization, which in our country is Law 24,071. It is the obligation of States to guarantee indigenous peoples the right to consultation and prior, free, informed and good faith consent whenever measures of any kind are available that affect them.
Indigenous rights are also guaranteed by the UN Declaration on Indigenous Peoples (articles 2, 17, 19, 32, 36, 38) and the American Declaration on Indigenous Peoples (articles XX, XXIII, XXIX and XXVIII).
What developed motivated the filing of a declaratory action of certainty by the National Executive Power before the Supreme Court of Justice of the Nation. The presented brief raises the “institutional gravity” generated by the partial reform of the Constitution of Jujuy, promoted by the current provincial Executive Power in charge of Governor Gerardo Morales, since “the institutional order of the republic and the democratic system is at stake, as well as the values that support it” and the unconstitutionality of the reform is requested.
In the same way, the Catholic Church, through the National Aboriginal Pastoral Team (ENDEPA), an agency dependent on the Episcopal Conference, presented itself to the Supreme Court of Jujuy to request its adherence to the “action of unconstitutionality” raised by the native communities against the constitutional reform approved by the government of that province.
I urge the judiciary to act properly and declare the reform unconstitutional.
Is a constitutional lawyer from Córdoba, Argentina.