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THE RIGHTS OF THE ON Rapa Nui

IWGIA report 15 THE HUMAN RIGHTS OF THE RAPA NUI PEOPLE ON EASTER ISLAND

Report of the international Observers’ Mission to Rapa Nui 2011

Observers: Clem Chartier, President of Métis National Council, Canada. Alberto Chirif, Anthropologist and Researcher, IWGIA, . Nin Tomas, Associate Professor of Law at the University of Auckland in Aotearoa- , and researcher in the area of Rights.

Rapa Nui: August 1 - 3, 2011 : August 4 - 8, 2011

Report 15 IWGIA - 2012 CONTENTS THE HUMAN RIGHTS OF THE RAPA NUI PEOPLE ON EASTER ISLAND Observer´s Report visit to Rapa Nui 2011

ISBN: 978-87-92786-27-2 PRESENTATION 5 Editor Observatorio Ciudadano 1. Historical information about the relationship between the Rapa Nui Design and layout people and the Chilean State 7 Lola de la Maza Cover photo 2. Diagnosis of the Human Rights situation of the Rapa Nui and their Isabel Burr, archivo Sacrofilm demands, with special reference to the rights of self-determination Impresión Impresos AlfaBeta and territorial rights 11 Santiago , 2.1. Self Determination 12

2.1.1 Right to Consultation over Migration Control 18

2.1.2 Conclusion 20

2.2. Territorial Rights 21 OBSERVATORIO CIUDADANO Antonio Varas 428 - , Chile 2.2.1. Lands Occupations 21 Tel: 56 (45) 213963 - Fax 56 (45) 218353 E-mail: [email protected] - Web: www.observatorio.cl 2.2.2. Return of Lands 26

INTERNATIONAL WORK GROUP FOR INDIGENOUS AFFAIRS 3. rIGHTs of Indigenous Peoples in Chile 30 Classensgade 11 E, DK 2100 - Copenhagen, Denmark Tel: (45) 35 27 05 00 - Fax (45) 35 27 05 07 4. Conclusions 31 E-mail: [email protected] - Web: www.iwgia.org 5. recommendations 32

ANNEX

Acknowledgments violations of the rights of the Rapa Nui People and Rapa Nui individuals, according to the American Convention on Human Rights 35

We acknowledge the contribution of the Observatorio Ciudadano, in particular of Consuelo Interviews 38 Labra, of the Indian Law Resource Center, of International Work Group for Indigenous Affairs (IWGIA), as well as that of the Ford Foundation in the implementation of this observation Other activities 38 mission and in the preparation of this report. We also express our gratitude to all the individuals and institutions, particularly those of the Rapa Nui people, who provided support and information for the preparation of this report. PRESENTATION

This document corresponds to the Report “Ley Pascua” was enacted, as well as the violation prepared by a group of observers from different of territorial rights and of self-determination that latitudes and disciplines, including Clem Chartier, continue to date. President of the Métis National Council, Canada; Alberto Chirif, Anthropologist and Researcher, One of the most serious violations to the rights IWGIA, Peru; and Nin Tomas, Associate Professor of the Rapa Nui, which remains to date, is the of Law and Researcher in the area of Indigenous usurpation of their territory. This was done by Peoples’ Rights at the University of Auckland in means of the registration of the entire Easter Aotearoa-New Zealand. For its preparation, the Island in the name of the State of Chile, carried observers visited Easter Island and Santiago, out in 1933, a time when the Rapa Nui were the capital of Chile, in the month of August considered stateless and lacked all civil and 2011, where they held meetings with traditional political rights. This registration was conducted authorities and Rapa Nui organizations, Chilean in the Recorder of Deeds, a city located authorities, indigenous organizations on the more than 4,000 kilometers and human rights entities. from the island, excluding any possibility for opposition, using as an argument that the land The purpose of this Report, which has as had no owners. background the recent events concerning the acts of police violence and criminalization of Since the enactment of the “Ley Pascua”, this the territorial claims of the Rapa Nui peoples relationship changed, recognizing the Rapa which occurred in the 2010 and 2011, is Nui’s rights of citizenship and other benefits, to assess the human rights situation of the Rapa which was reinforced by subsequent legislation Nui people. such as the “Indigenous Act” in the early 90’s that granted special rights to the Rapa Nui and In the first part of theR eport, historical information the ratification of the ILO Convention 169 on is provided regarding the relationship between Indigenous and Tribal Peoples in Independent the Rapa Nui people and the Chilean State, Countries. In practice, however, as explained in beginning with the annexation of the Easter this Report, such legislation has not resulted in Island territory to Chile in the late nineteenth the return of the land and respect for territorial century by signing a Treaty or “Agreement of rights and self-determination of the Rapa Nui Wills” in the 1888 with Rapa Nui authorities of peoples. the time. This agreement established the basis of this relationship, becoming an essential tool for In the second part of the Report, an updated determining land rights and self-determination analysis of the human rights situation of the of the Rapa Nui people. Rapa Nui people and their demands is made, with particular regard to land rights and self- The thesis of the authors is that this agreement determination. The background information is part of a Polynesian tradition of making is presented in more depth with respect “international treaties” between peoples in their to their collective demand to recover their travels throughout the and, in this ancestral territory, to respect their right to self- context, they accepted the Chilean government, determination under International Law, and but they did not hand over the territory and the for the full recognition of the 1888 Treaty or investiture of traditional Rapa Nui authorities “Agreement of Wills”. The commitments made was maintained. This was violated by the Chilean and not met by the Chilean State to respond State, which submitted the Rapa Nui to a series to the demands of the Rapa Nui people are Map of Easter Island. {{PD-PCL|http://www.lib.utexas.edu/maps/islands_oceans_poles/easterisland.jpg}} of afflictions, holding them in conditions of also examined. It especially examines the semi-slavery, as stateless and denied of all civil demand for effective political participation and and political rights until 1967 when the so-called control over their political institutions by way

rePORT RAPA NUI 5 of establishing a “Special Statute,” a method of and dissemination of the critical human rights 1. Historical information about the relationship be- Immigration Control, and a special reference to situation of the Rapa Nui people, which must efforts to achieve compliance with the right of be urgently addressed by the Chilean State tween the Rapa Nui people and the Chilean State indigenous peoples to prior consultation. based on the international commitments it has assumed in this regard. The Report also analyzes the information about the Rapa Nui people’s collective demand to obtain restitution of the territory from which they The annexation of Easter Island by the Chilean over lands and territory was retained by the have been deprived, giving rise to the peaceful State was effected by an “Agreement of Wills”, Maori chiefs under the Treaty. occupation of public and private buildings of on September 9, 1888, a Treaty signed by the In spite of being separated by an ocean, the the island by members of the Rapa Nui people IWGIA captain, Policarpo Toro, in representation between August 2010 and February 2011. This similarity of these recorded customs, suggests of the Chilean State and the Rapa Nui king, was used as leverage to demand recognition of a common practice may have existed amongst . This document, which was their rights to ancestral property, an occupation OBSERVATORIO CIUDADANO Pacific peoples of demarcating the retention written in Castilian and Rapa Nui/ancient that was brutally suppressed by the Chilean of land and authority in the collective hands of state, thereby criminalizing social protest in the Tahitian, established a relationship between the “tangata henua” (people of the earth), while claim for legitimate rights. the Chilean State and the Rapa Nui. There are assigning a lesser authority to foreigners as differences between the texts. The Castilian text The third section of the Report refers to the newcomers. During the Mission, Professor Tomas refers to an absolute transfer of sovereignty by overall situation of the Rights of Indigenous attended a meeting with members of Te Moana the Rapa Nui to Chile. The Rapa Nui/ ancient Peoples in Chile. This context highlights the lack Nui a Kiva, a Pan-Pacific association of indigenous Tahitian text, however, speaks of “what is above of constitutional recognition, the absence of a chiefs living within the formal mechanism for prior consultation in case is written (agreed upon)”, indicating that the created by , Rapa Nui, and Aotearoa. They of measures which may affect them directly or agreement only refers to use of the surface stated that the process of creating Treaties is to ensure their political participation, and the without transferring title of the land to Chile.1 not a monopoly of western nations, but was an lack of clear measures for the implementation Rapa Nui claim that their right of ownership over ancestral tradition frequently engaged in when of the ILO Convention 169 in force in Chile the entire territory of Rapa Nui was recognized their ancestors travelled between the Pacific since September 2009. This section also as well as the investiture of its chiefs, with the includes background information on the lack Islands. Chilean Government offering to be “a friend of of legitimacy, indigenous representation, and inefficiency of public state agencies to reflect the island”. Since the annexation of the Island as Chilean territory, the State of Chile has not recognized the social and cultural needs of peoples. Oral traditions transmitted from generation to Rapa Nui authority. Instead it granted the In the fourth part of the Report, it is concluded generation on the Island record that “Atamu administration of the Island to private that the Chilean State maintains inequitable Tekena, the (king), pulled up a bunch of grass individuals and the . The Report treatment of the Rapa Nui people, does with earth in his hand; he separated the grass from of the National Commission on Historical Truth not recognize and respect the 1888 Treaty the dirt and passed the grass to Policarpo and and Reconciliation states: “[T]his agreement or Agreement of Wills, thereby breaching kept the earth”. 2 This gesture is in accordance established the transfer of sovereignty of the internationally recognized human rights for with Rapa Nui custom indicating that they kept indigenous peoples, particularly the territorial Island in favor of the Chilean State, who made “their ownership rights of the land in an inalienable and self-determination rights and the right to the commitment to provide education and manner”. 3 In 1840, a similar gesture was carried political participation. Finally, the fifth section development to the Islanders who held their out by the Maori chief, Panakareao, after signing establishes a set of recommendations to the ownership rights over the land, and the Rapa Nui Chilean Government oriented towards the full the Waitangi Treaty in Aotearoa, to indicate that chiefs kept their positions of authority. However, the respect of internationally recognized human “tino rangatiratanga” or absolute chieftainship rights of the Rapa Nui people. successive governments failed in their part of this agreement, leasing the entire island to third parties Finally, the Report includes an annex with a as a sheep farm and registering the ownership of all discussion about the principal rights of the 1 National Commission on Historical Truth and the land in the name of the Chilean Treasury”. 4 American Convention on Human Rights which Reconciliation Report, chapter on Rapa Nui people, have been violated by the State of Chile in the Page 277. Available at: [http://www.memoriachilena. case of the Rapa Nui people and its members. cl/upload/mi973056855-2.pdf ] 2 PEREYRA-UHRLE, Maria, “Easter Island Land Law”, in 12 The Report introduced here, constitutes a RJP/NZACL YEARBOOK 11, p. 135. 4 National Commission on Historical Truth and fundamental document for the knowledge 3 PEREYRA-UHRLE, op. cit. Reconciliation Report, op. cit., p. 276.

6 REPORT RAPA NUI rePORT RAPA NUI 7 by the Treasury to, and amongst, members of “ethnic group”. It enshrines Rapa Nui rights as an the Rapa Nui. The practice is recorded since indigenous ethnic group8 and imposes a State 1918 and continues after registration in the duty to promote those rights. The Indigenous name of the Chilean Treasury. It is evidence that Law also establishes special regulations for the the Chilean State did recognize, in a minimalist Rapa Nui ethnic group from Article 66 onwards. way, ancestral ownership of the Rapa Nui to their In particular, Article 67 creates the Easter Island lands. Development Commission [“CODEIPA”], and outlines its function and role in regularizing The civil and political rights of the Rapa Nui were Island lands. The Indigenous Law refers to the not recognized until 1966. “[T]he Rapa Nui people provisions in D.L 2,885 and adopts the same were not subject to law. In fact they did not have procedural formula and restrictions, but it Chilean nationality and were stateless, a legal status replaces the old Settlement Commission with a which not only prohibited them from travelling to new administrative body, CODEIPA.9 the continent, except on rare exceptions, but they also could not leave the country since they were not Under CODEIPA, transfers to Rapa Nui have entitled to obtain a passport”. 6 primarily been of small pieces of land granted to individual property owners. The only large Years of resistance by the Rapa Nui, together transfer of land to Rapa Nui was directed to new with mounting pressure from various political in the , material and cultural heritage of the Rapa Nui people, administered by Corporación families without land, between the years 1998- actors and from within Chilean civil society, and Nacional Forestal (CONAF). Photo by Gonzalo Gabarró. 2000. Under the “Management, administration particularly the 1964 rebellion led by Alfonso In 1895 the entire island was leased to a continued until the 1960’s and, in fact, was not Rapu, finally led to the enactment of Law Nº Frenchman, Enrique Merlet, and in 1902 to modified by the naval authorities”.5 16,441 of 1966 [“Ley Pascua”]. Ley Pascua created 8 Law N° 19.253 uses the term “ethnic groups.” Williamson Balfour, a British company whose a Department in the Easter Island Province In direct contravention of the 1888 “Agreement 9 Article 67.- subsidiary was the “Compañía Explotadora de Isla and set regulations for the organization and of Wills”, on November 11, 1933, the State of operation of public services on the Island. Rapa The Easter Island Development Commission is hereby de Pascua”. From 1917 onwards the Island was constituted having the following attributions: Chile registered the ownership of Rapa Nui lands subject to the authority, laws, and regulations Nui rights to citizenship were recognized from 1.- To propose to the President of the Republic the in the name of the Chilean Treasury. Authority that time, together with tax exemptions, land destinations contemplated in articles 3 and 4 of the of the Chilean Navy, which became the only Decree Law N° 2,885, 1979; for the registration was drawn from Article 590 State institution that would stay connected rights, and a process for regularizing land titles 2.- To comply with the functions and attributions that of the Civil Code, which states that “All lands Decree Law N° 2,885, of 1979, provides to the Settlement with it and its inhabitants for many years. The and prohibiting land sales to non-Rapa Nui. which, situated within territorial boundaries, lack Commission. In the compliance with these functions National Commission on Historical Truth and and attributions, it must consider the requirements another owner are considered State assets”. The In 1979, during the military dictatorship of Reconciliation records that: “[D]uring those established in Title I of the aforementioned Decree Law registration was published in a newspaper in General Pinochet, Law D.L. 2,885 was enacted and, in addition, the following criteria: years, Rapa Nui was governed by the colonizing a) To analyze the need for land of the Rapa Nui or Easter the city of . The Rapa Nui were not to regularize land ownership by granting free agents linked to the sheep raising company that property titles to regular landholders. This Island population. informed of the registration and could not voice b) To evaluate the contribution that said lands make to economically exploited the Island and by the any opposition. Opposition would have been transfer of land from the Treasury to regular the development of Easter Island and to the Rapa Nui or Chilean Navy, which, for a long time, represented 7 Easter Island community. futile anyway because at that time Rapa Nui landholders was limited to the lands the interests of the Chilean Government. Political c) To foment the cultural and archeological wealth of were not considered to be citizens or nationals on which the Rapa Nui had been relocated after Easter Island; control of the sheep farm was exercised by the 3.- To formulate and execute development programs, of Chile. The registration of ownership was Chile annexed the Island in 1883. administration on duty, who at the same time was projects, and plans tending to elevate the standard repeated 44 years later in 1967, in the Easter of living of the Rapa Nui or Easter Island community, the Maritime Sub-delegate, standing out for the In 1993 democracy was restored in Chile and Island Registry of Deeds. conserve its culture, preserve and improve the abuses and mistreatment they committed against Law N° 19,253 of 1993, “for Protection, promotion, environment and the natural resources existing on the islanders. This resulted in the forced reclusion and development of Indigenous peoples” Easter Island; Despite this registration, the books of the 4.- To collaborate with the National Forestry Corporation of the Rapa Nui population to the Hanga Roa Chilean Navy in charge of administering Easter [“the Indigenous Law”], was enacted. It is still in (CONAF) in the administration of the Easter Island zone with no more than 1000 hectares, an area Island since 1917, and the National Property force. Article 1 recognizes the Rapa Nui as an National Park; 5.- To collaborate in the conservation and restoration which is fenced off with stonewalls and barbed Records, both record transfers of real property of the archeological patrimony and of the Rapa Nui or wire to impede the islanders from moving freely Easter Island culture , together with Universities and the throughout the island countryside. This practice 6 National Commission on Historical Truth and National Council, and Reconciliation Report, op. cit., p. 277. 6. - to prepare covenants with persons and national 5 National Commission on Historical Truth and and foreign institutions for the compliance with the 7 That which comes from fair title and was acquired in Reconciliation Report, op. cit., p. 277. aforementioned objectives. good faith

8 REPORT RAPA NUI rePORT RAPA NUI 9 2. Diagnosis of the Human Rights situation of the Rapa a Rapa Nui National Park RAPA NUI b Vaitea Farm Nui and their demands, with special reference to the Pacific Ocean c Hanga Roa (fiscal and indivdual property) a rights of self-determination and territorial rights. Rural area (fiscal and d individual property) e Lands transferred by Chilean State (Rapa Nui property) b Lands available to be e a b f transferrer to Rapa Nui a (fiscal property) a Conversations with Rapa Nui government non-compliance with its terms. As previously e d f authorities and the general public established mentioned, the entire island was registered a widely-held view that the entire Rapa Nui as the property of the State of Chile in 1933, a a territory is claimed as ancestral territory held without respecting the 1888 Treaty, the Rapa Nui Pacific Ocean c collectively by the different clans under their people, or their kinship and ruling systems. a Pacific Ocean customs and laws. a In this regard, Chilean government authorities Today approximately 3,000 Rapa Nui live on spoke about recent efforts made to provide the Island.13 Those we interviewed said that for representation of Rapa Nui in government, Map produced by Rubén Sánchez, Observatorio Ciudadano, based on information of the Ministerio de Bienes Nacionales Chile their current land and territorial claims under to consult with indigenous peoples in Chile “self-determination” and “land rights” are based (including the Rapa Nui), and to resolve land on original occupation and ancestral rights to rights and provide access to public services the land that existed prior to the 1888 Treaty. on the island. The effectiveness of these and provision of fiscal property on Easter Island” by the National Forestry Corporation [“CONAF”], Some questioned its validity, noting that the government measures was questioned by the program, 1,500 ha (254 ha of National Park, a private corporation whose main purpose is to current exercise of government over the island Rapa Nui and Mapuche representatives with 755 ha of the Vaitea Farm and 500 ha of Fiscal foster the conservation, growth management, by the Chilean State does not recognize this whom we met in Santiago. 10 property) was transferred. However, only the and utilization of forest resources and protected perspective, but relies instead upon the Spanish In general, such measures were viewed as first stage of this program has been completed, areas in the country. version of the 1888 Treaty, under which and only 13% of Island land is currently under unsystematic and piecemeal steps taken to The National Indigenous Development Corporation Chile claims to have acquired “sovereignty” over Rapa Nui control, while more than 70% remains resolve problems posed by migration, the poor [“CONADI”] is a public service body created the territory and inhabitants of Rapa Nui under government property11. Government property political relationship that exists between Rapa under the Indigenous Law. Its functions include outmoded colonial concepts of international is held in two entities. The first is theV aitea Farm, Nui and the Chilean Government, and individual the restoration of ancestral lands that have law that have long been discredited. which is administered by the private Company, land claims. No-one we interviewed saw them been taken away from indigenous peoples. It Sociedad Agrícola y Servicios Isla de Pascua There is growing concern amongst the Rapa as a genuine effort toward implementing the has been interpreted by CONADI that it does Limitada [“SASIPA”], whose main objective is the Nui that the State of Chile does not recognize 1888 Treaty. A widely-held view was that true not have legal mandate for regularizing the administration and exploitation of agricultural or promote “self-determination” according to recognition must include forms of Rapa Nui self- land as this authority belongs to CODEIPA and and urban property, public utilities services and the precepts of modern International Law, but government and autonomy. to the Ministry of National Asset. As a result, other assets, such as the electricity and drinking continues instead to rule Rapa Nui without the Land and Water Fund established under An elder of the Rapa Nui Parliament told us that water services, located on Rapa Nui. The second recognizing either the autonomy or self- Article 2012 of the Indigenous Law has been the right to prior consultation and consent that is the Rapa Nui National Park, which is managed government and territorial rights of the Rapa is stipulated in ILO Convention 169 of the ILO executed restrictively on the Island for irrigation Nui people. infrastructure only. makes sense to them, but that State actions have Discontent amongst the Rapa Nui has its legal not been consistent with this. In his opinion, the 10 see: “Los Derechos de los Pueblos Indígenas en Chile”, origin in the non-ratification of the Agreement Government has not consulted them about the Indigenous Rights Program Report, Institute of of Wills Treaty by the Chilean Government and activities that it develops on the island. The Rapa Indigenous Studies, Universidad de la Frontera, Lom editions, 2003. Chapter V, “Los derechos del pueblo Nui Parliament wanted to know the laws and Rapa Nui” 12 The Fund for Indigenous Lands and Water is a rights that they can make use of to protect their mechanism created by the Indigenous Law to 11 see: RIVAS, Antonia, “The Power of the Law. Land Rights subsidize the expansion of indigenous lands, natural resources, including their ocean fisheries. on Rapa Nui”, p. 18-19, Paper delivered to the Law through purchasing land from private owners which 13 The latest official statistic corresponds to the and Society Association conference. , are claimed by indigenous peoples and constitute Population Census carried out in 2002, a time in Likewise, Parliament members also cited June 2011. or regularize the water rights to indigenous peoples. which the Island had 3.791 inhabitants, of whom 2.269 were Rapa Nui. www.ine.cl historical conflicts and disputes with the

10 REPORT RAPA NUI rePORT RAPA NUI 11 Chilean State over land. They want the State to a. “to ensure, with due respect for the culture of the of human rights of contemporary international law self-government in internal and local affairs19, recognize that the land belongs to the Rapa Nui peoples concerned, their political, economic, more than from the framework of the rights of the as well as the right to determine and develop people and to initiate a process for regaining the social, and educational advancement, their just States”. 17 priorities under the right to development.20 effective control of island lands to them. treatment, and their protection against abuses; Indigenous peoples were historically, deliberately In this way, indigenous peoples have the right to b. “to develop self-government, to take due excluded from the right to self-determination, maintain and develop their political, economic, account of the political aspirations of the despite its recognition as a collective human and social systems and institutions, to be 2.1. Self Determination peoples, and to assist them in the progressive right in the United Nations Covenants that secure in the enjoyment of their own means of 18 Self-determination is a principle of International development of their free political institutions, ensure this right to all “peoples”. subsistence and development, and to engage Law that has been transformed and reshaped according to the particular circumstances of freely in all their traditional and other economic Common Article 1 of the Covenants on Civil and over the years, from an aspirational principle for each territory and its peoples and their varying activities. The right of Indigenous Peoples to Political Rights and on Economic, Social, and States that is enshrined in the United Nations stages of advancement”. determine and develop all health, housing, and Cultural Rights states: Charter of 1945, to an enforceable right of other economic and social programs that affect In practice, the right could only be exercised by colonized peoples at the time of decolonization “Article 1 them, and, wherever possible, to administrate peoples inhabiting overseas colonial territories, from 1945 to the 1960’s, to a recognized right these programs through their own institutions, and it thus avoided the problems of internal 1. All peoples have the right of self-determination. 21 of peoples living within States under the Civil is specifically recognized. and indigenous peoples. The By virtue of that right they freely determine their and Political Rights and Economic and Social theory, referred to as the “the blue water thesis” political status and freely pursue their economic, It is important to note that ILO Convention 169 Rights Covenants of the United Nations by the has its legal foundation in Principles IV and V of social and cultural development. has been in force in Chile since September 2009. late 1960’s, and, finally, as a right of indigenous the Resolution 1541 of United Nations.16 Because States feared that self-determination peoples that must be respected by the States 2. All peoples may, for their own ends, freely under the United Nations Covenants might under the 2007 UN Declaration on the Rights of Although the Rapa Nui case was not considered dispose of their natural wealth and resources support secession, Article 1.3 of the Convention Indigenous Peoples.14 for the Decolonization Program by the United without prejudice to any obligations arising states that the term “peoples” “shall not be Nations, it meets all of the requirements of out of international economic co-operation, This principle of International Human Rights construed as having any implications as regards the “ in between” theory, a situation further based upon the principle of mutual benefit, and Law is based on Article 73 of the United the rights which may attach to the term under enhanced by the fact that it involves an international law. In no case may a people be Nations Charter 15 which states: “The Members international law”. This limitation does not indigenous people. deprived of its own means of subsistence. of the United Nations which have or assume the exclude indigenous peoples from the human right of self-determination. responsibilities for the administration of territories The recognition of this principle of International 3. The States, parties to the present Covenant, whose peoples have not yet attained a full measure Law as an enforceable right of indigenous including those having responsibility for the In this regard, the ILO itself declared that ruling of self-government recognize the principle that peoples is possible because the principle has administration of Non-Self-Governing and on the self-determination of indigenous peoples the interests of the inhabitants of these territories evolved to the point where it now has the Trust Territories, shall promote the realization of was outside the scope of its competence.22 are paramount, and accept as a sacred trust status of a collective Human Right. In this way, the right of self-determination, and shall respect the obligation to promote to the utmost, within as indicated by Anaya, “self-determination is that right, in conformity with the provisions of Even though the ILO Convention and the the system of international peace and security properly interpreted as arising from the framework the Charter of the United Nations”. Declaration bear a different legal status, the established by the present Charter, the wellbeing Declaration is considered to be binding by of the inhabitants of these territories”, and, to this After years of claiming this right in international end, they are committed to comply with certain 16 Principle IV: Prima facie there is an obligation to organizations, indigenous peoples finally obligations, amongst which, the first two are transmit information in respect of a territory which gained recognition in the 2007 United Nations is geographically separate and is distinct ethnically Declaration on Rights of Indigenous Peoples. 19 “Indigenous peoples, in exercising their right to self- especially relevant to the case of the Rapa Nui: and/or culturally from the country admin­istering it. determination, have the right to autonomy or self- Special measures are established in the government in matters relating to their internal and Principle V: Once it has been established that such Declaration to ensure indigenous autonomy and local affairs, as well as ways and means for financing a prima facie case of geographical and ethnical their autonomous functions.” (Article 4) or cultural distinctness of a territory exists, other elements may then be brought into consideration. 20 “Indigenous peoples have the right to determine and These additional elements may be, inter alia, of develop priorities and strategies for exercising their right to development.” (Article 23) 14 see: TOMAS, Nin, “Indigenous Peoples and the Maori. an administrative, political, juridical, economic The Right to Self-Determination in International Law- or historical nature. If they affect the relationship 17 ANAYA, James, “The right of indigenous peoples to self- 21 Articles 20 and 21, United Nations Declaration on From Woe to Go”, in New Zealand Law Review, 2008, between the metropolitan State and the territory determination”, in “The challenge of the Declaration – the Rights of Indigenous Peoples. p. 648. concerned in a manner which arbitrarily places the History and Future of the United Nations Declaration latter in a position or status of subordination, they on Indigenous Peoples”, editors Claire Charters and 22 International Labor Conference; Partial revision of 15 Alberto Chirif is grateful for the information and support the presumption that there is an obligation Rodolfo Stavenhagen, IWGIA, 2009. the Covenant on Indigenous and Tribal populations, reflections that were provided on this matter by to transmit information under Article 73 e of the 1957 (N° 107) Report IV (2ª), International Labor Office, Pedro García Hierro. Charter. 18 See TOMAS op. cit. and ANAYA, op. cit. Geneva, 1989.

12 REPORT RAPA NUI rePORT RAPA NUI 13 indigenous peoples, upon the States that determination, it supports human rights by relating to its writing. Said paragraph stipulates The right of consultation of indigenous willingly signed it after 25 years negotiating its acknowledging that indigenous peoples have that: “The States parties to the present Covenant, peoples is clearly established in Article terms. Articles 38 and 42 of the Declaration set the right to decide their own development including those having responsibility for the 19 of the Declaration: “[T]he States shall out the duties of compliance and promotion priorities affecting their lives, beliefs, institutions, administration of Non-Self-Governing and consult and cooperate in good faith with the required of States: and spiritual well-being, the lands they occupy Trust Territories, shall promote the realization indigenous peoples concerned through their own and use, and to control their own economic, of the right of self-determination, and shall representative institutions in order to obtain their “Article 38: States, in consultation and social and cultural development. respect that right, in conformity with the free, prior and informed consent before adopting cooperation with indigenous peoples, shall provisions of the Charter of the United Nations”. and implementing legislative or administrative take the appropriate measures, including The ILO has strongly argued that its provisions These obligations exist irrespective of whether a measures that may affect them”. legislative measures, to achieve the ends of this do not support creating a State within a State people entitled to self-determination depends, Declaration.” but are oriented toward actions “in the framework The right of participation has been widely or not, on a State party to the Covenant. It of the State in which they (the indigenous and tribal recognized by international human rights law. “Article 42: The United Nations, its bodies, follows that all States parties should adopt peoples) live”. 25 Instruments such as ILO Convention 169 provide positive measures to facilitate the exercise including the Permanent Forum on Indigenous recognition in Articles 6 and 7. However, it is also and the respect of the rights of peoples to self- Issues, and specialized agencies, including at the In line with the above, the Convention urges viewed as an extension of the human right to determination. country level, and States shall promote respect governments to promote indigenous self- political participation in courts such as the Inter- for and full application of the provisions of this development. It suggests that States, upon These positive measures should be compatible American Court of Human Rights [“IACHR”]. The Declaration and follow up the effectiveness of the request of the peoples concerned, provide with the obligations contracted by the States IACHR has stated that: “[T]he right to consultation, this Declaration”. appropriate technical and financial assistance pursuant to the United Nations Charter and and the corresponding state duty, are linked wherever possible, for the management of their Furthermore, States must view it as an instrument international law; particularly the States must to several human rights, and in particular they own funds, taking into account the traditional that enlightens public policy and guides the refrain from interfering in the internal affairs connect to the right of participation established technologies and cultural characteristics of the interpretation of legislation. In Chile, this includes of other States, thereby unfavorably affecting in Article 23 of the American Convention, as peoples, as well as the importance of sustainable ILO Convention 169. The instruments should the exercise of the right to self-determination. interpreted by the Inter-American Court in the case and equitable development.26 not be read as conflicting; on the contrary, they The reports should contain information on of YATAMA vs. Nicaragua. Article 23 recognizes the are to be viewed as containing complementary The right to self-determination for indigenous the performance of these obligations and the right of ‘[e]very citizen’ to ‘take part in the conduct norms that must be interpreted harmoniously. peoples has been reinforced by the jurisprudence measures adopted to that effect”.27, 28 of public affairs, directly or through freely chosen of the United Nations Human Rights Committee representatives’. In the context of indigenous The Declaration raises the profile of ILO In addition to ensuring the autonomy and self- in two cases decided under Articles 1 and 27 peoples, the right to political participation includes Convention 169. Article 35 of the Declaration government of indigenous peoples in their of the Covenant on Civil and Political Rights, in the right to ‘participate in decision-making on states that “[T]he application of the provisions of internal and local affairs, and in accordance 1984 and 1994. matters and policies that affect or could affect this Convention shall not adversely affect rights and with their own political institutions and cultural their rights from within their own institutions and benefits of the peoples concerned pursuant to other The Committee stated in its General Observation models, the right to self-determination also according to their values, practices, customs, and 29 Conventions and Recommendations, international N° 12, of 1984, under Article 1 of the Covenant has a participative aspect that requires that forms of organization”. 32 instruments, treaties, or national laws, awards, on Civil and Political Rights, which contains the indigenous peoples be able to participate fully customs, or agreements”.23 CLAVERO argues that, right to self-determination of peoples, that: “[i]n the political, economic, social and cultural Taking account of the above, and given that “…the Convention can be a very valuable tool for life of the State”, 30 and in all decisions affecting Chile has signed the United Nations Covenant “6. Paragraph 3, in the Committee’s opinion, 31 the actual reception of the UNDRIP in the case of them. has special importance in that it proposes States that are party to it, or which will take part in specific obligations to the States parties to it the future”. 24 the covenant, not only in relation to their own

Although the Convention does not expressly peoples but with all peoples who have not been 27 General Observation No. 12, General comments recognize indigenous peoples’ right to self- able to exercise their right to self-determination made by the Human Rights Committee Article 1 – or who have been deprived of the possibility of Right to Self-determination, 21st period of meetings, U.N. Doc. HRI/GEN/1/Rev.7 at 152 (1984). exercising said right. The general character of this paragraph is confirmed by the information 28 The highlighting is ours. 23 The highlighting is ours. 29 ANAYA, op cit. 24 CLAVERO, Bartolomé, Cometido del Foro Permanente 30 Article 5, United Nations Declaration on the Rights of para las Cuestiones Indígenas a la Luz del Valor Indigenous Peoples. 32 Inter-American Commission on Human Rights, Vinculante y con Vistas a la Mayor Eficacia del Derecho 25 ILO Guide, p. 20 and 21. Report: “Rights of Indigenous and Tribal Peoples Internacional de los Derechos Humanos, United 31 Article 18, United Nations Declaration on the Rights over their Ancestral Lands and Natural Resources”, Nations , PFII/2009/EGM1/4. 26 Article 23.2 of the ILO Convention 169. of Indigenous Peoples. December 2009, p. 109, parag.274.

14 REPORT RAPA NUI rePORT RAPA NUI 15 on Human Rights33, ILO Convention 16934, and We have witnessed the unsuccessful attempts Province, according to instructions given by the A Presidential Message announcing the the United Nations Declaration on Rights of of the Rapa Nui people to gain recognition of Intendant. 37 constitutional reform process was submitted to Indigenous Peoples35, we conclude that the their right to self-government, through their Congress in 2005. It stated that: Rapa Nui belongs to the territorial State has not complied with the right of self- own institutions and according to development of Valparaíso. Its Regional Government and “[T]he Rapa Nui territory management is determination as it applies to the Rapa Nui. priorities defined by them, under the “Special Intendant reside in the regional of particularly complex due to, among other Statute” passed by the Chilean government for In conversations with the Rapa Nui we discerned Valparaíso which is 4,000 km from Rapa Nui. At factors, its natural and archeological heritage, Rapa Nui. Commitments made by the Chilean that most Rapa Nui want Chile to continue the same time, Rapa Nui also constitutes the unique to this planet, to its geographical government under this statute have only been its relationship with the island. They are not Province of Easter Island and the isolation as an island, and by being partially implemented, requests for migration seeking secession, but want their relationship of Easter Island, whose respective authorities mostly inhabited by members of an ethnic control are now urgent, and Consultation with the Chilean State to be re-framed under are the Provincial Governor, under the central community that seeks greater opportunities for processes need to be reviewed. laws and institutions that reflect greater respect administration; the Mayor, and the Municipal participation. for the Rapa Nui and which adhere to modern In July 2007, law reform introduced a new norm Council, these last being elected by popular The administration of the territory is structured international law guidelines, including the into Chapter XIV of the Chilean Constitution on vote. by a series of political tensions in a broad sense Declaration on the Rights of Indigenous Peoples. Government and Internal Administration of the In addition, CODEIPA is a legal body created by of the term (between Rapa Nui authorities State. It provided: Law 19,253 of 1993, for the fulfillment of specific and heads of services, Rapa Nui leaders and “Article 126 bis. - The Special territories correspond functions set out in Article 67. It has 15 members national authorities) and, certainly, by the to Easter Island and to the Juan Fernández and is chaired by the Governor. There is no plurality of laws that affect the management of . The Government and Administration guarantee of a Rapa Nui majority in CODEIPA as the island”.39 33 ratified and in force since 1976. It is worth noting that the Human Rights Committee, in the Observations of these territories shall be governed by the only 6 of its 15 members are directly elected by In compliance with the constitutional reform made to the State of Chile in its Fifth Periodic special statutes established by the respective the Rapa Nui. 38 Report, CCPR/C/CHL/CO/5, 89th period of sessions, 36 that introduced Article 126 bis, a Bill was April 17, 2007, made a recommendation regarding constitutional organic laws”. Indigenous peoples (especially Mapuche people), The overlapping authorities set out above, submitted to the Congress of Chile in July 2008, based on Articles 1 and 27 of the CCPR, establishing Constitutional reform is necessary because the the constant demand from the Rapa Nui for by Presidential Message, on the Special Statute the following in paragraph 19 of said Report: current State administration does not meet the effective political participation and control over of Government and Administration for the Easter “While noting the intention expressed by the State party demands and needs of the Rapa Nui. their political institutions, and the geographical Island Territory. The Bill has been stalled, without to give constitutional recognition to indigenous isolation and archeological and natural heritage discussion, in the first constitutional stage in the peoples, the Committee is concerned about the variety of The Republic of Chile is divided into territorial of the Island, have together led to approval for House of Representatives, since December 2010 reports consistently received in the sense that some “” that are administered by “Regional of the claims of indigenous peoples, especially the constitutional reform to establish a “Special (Legislative Bulletin N° 5940-06). 40 Governments”. They are comprised of the Mapuche people, have not been met, and the slow pace Statute” for Rapa Nui. of demarcation of indigenous lands has caused social “Intendant”, who is directly appointed by the The Bill refers to the special situation of Easter tensions. The Committee is sorry to learn that “ancestral lands” are still threatened by forestry expansion and President of the Republic, and the Regional Island due to its territorial isolation. It does not energy infrastructure megaprojects. (Articles 1 and 27) Council. The Council is presided over by the recognize rights to self-government of the Rapa The State party should: Intendant. Council members are appointed Nui and it guarantees them little participation in by municipal councilors, authorities of the the public positions and bodies that are created a) Make every effort to ensure that its negotiations with local municipal governments who are publicly for the administration of the territory. indigenous communities indeed lead to a solution that 37 Article 4, of Law N° 19,175, Constitutional Organic respects the land rights of these communities in elected. Law on Government and Regional Administration. accordance with Articles 1 (paragraph 2) and 27 of In short, the Bill re-organizes the authorities that the Covenant. The State party should expedite The Regions are constituted by smaller 38 “Article 68. - The Development Committee of are already administering the Island, using a procedures to recognize such ancestral lands. Easter Island will consist of one representative territorial units called “Provinces”. Each Province from the Ministries of Planning and Cooperation, model similar to the rest of the territory. It turns b) Modify Law 18,314, adjusting it to Article 27 of the is administered by a Governor chosen by Education, National Assets and National Defense; a Rapa Nui into a territorial unit similar to a “Region”, Covenant and reviewing sectorial legislation that may representative of the Production Development be in conflict with the rights enshrined in the Covenant. the President. The Governor operates under Corporation (CORFO), one of the National Forestry the authority of the Regional Intendant. He Corporation (CONAF), and one from the National c) Consult with indigenous communities before Indigenous Development Corporation (CONADI); granting permits for economic exploitation of disputed supervises existing public services within the 39 History of the Law Nº 20,193 Constitutional reform the Governor of Easter Island; the Mayor of Easter project that establishes the special territories of Easter lands and ensure that the exploitation in question does Island, and six members of the Rapa Nui or Easter not violate the rights recognized in the Covenant. “ Island and the Juan Fernández Archipelago, National Island community elected pursuant to regulations Congress Library, July 30, 2007. Available at: [http:// 34 Ratified and in force since 2009. issued for this purpose, one of the whom shall be the www.leychile.cl/Navegar?idNorma=263040 President of the Council of Elders. The Governor shall 35 Signed by Chile with a favorable vote to its adoption chair this Committee and the Head of the Bureau of 40 Legislative Bulletin N°5940-06. Available at: at the General Assembly of the United Nations in Indian Affairs of Easter Island will act as Technical http://www.camara.cl/pley/pley_detalle. September 2007, without reservations. 36 The highlighting is ours. Secretary. “ aspx?prmID=6325&prmBL=5940-06]

16 REPORT RAPA NUI rePORT RAPA NUI 17 which will be administratively dependant on the Inconsistency in the contents of the Bill and We echo this concern about the risk to the It should be noted that the Rapa Nui, despite central government. It does not create more lack of consultation with the Rapa Nui about cultural integrity of the Rapa Nui posed by their approval, questioned the content of the opportunities for the Rapa Nui to participate in legislative measures that directly affect them, exceeding the population carrying capacity of project because it did not expressly exclude decision-making. has produced resistance from the Rapa Nui. Rapa Nui. them from migration control or protect their free Although withdrawal of the Bill was agreed by circulation on their ancestral lands. In addition, According to the government proposal, the We view with concern that according to the official the executive in December 2010, it has not yet concern was expressed that it did not take into highest authority in the Special Territory would statistics, the population of Easter Island would taken place. This has resulted in a clear discontent consideration the right to conserve their culture be the “Island Governor”, who would head an have increased in 86% in twenty years (1992- by the Rapa Nui of the Chilean government who and self-determination as justifying the Rapa Nui “Island Territory Government” appointed by the 2012), period during which, the population at the are seen as makers of false promises. reason for controlling migration. President. The Island Governor would exercise national level would only have increased in 63%.42 his/her functions according to Presidential During our mission and particularly during the The Bill was submitted by Presidential Message to The cultural and environmental impacts instructions, in a role that would include Seminar on “The Human Rights of Indigenous the Congress for its approval and passed its first generated on Rapa Nui as a consequence of the presiding over the “Island Development Council” Peoples and their implications for the Rapa constitutional step before the Senate. However, population growth due to external migration, is and the “Land Commission”. Nui People”, held in Hanga Roa on August while it was in the House of Representatives, why the Rapa Nui, through their organizations, 1- 2, 2011, we witnessed an overwhelming the President of the Republic, making use of The Government of the Island Territory will be by demanded the establishment of migratory rejection of the Special Statute Bill by the diverse his constitutional powers, without reference to a new legal body similar to the regional councils control over their territory. The authority organizations that represent the Rapa Nui. A other reasons or without consulting the Rapa named in the “Island Development Council”. proposes modifying the Constitution of the high level of distrust in what the government is Nui people, substantially modified the text of The Council is described as a political body that Republic, Article 126 bis, by adding a second doing on the other side of the ocean in Chile was the Bill that was submitted to vote.43 The new is representative of the community. It is made paragraph to authorize migratory control and evident. It was apparent to us that the current text reads as follows: up by 6 councilors who are elected directly by restrict the free movement of people to the government is not well viewed on the island. citizens registered in the electoral registry of the island territory. The executive, mindful of ILO “Article One.- To be incorporated into Article Special Territory, at least 4 of whom must be Rapa Convention 169, carried out a consultation 126 bis of the Constitution of the Republic, the Nui; the President of the Rapa Nui Elders Council; process in order to collect the views of the following new second paragraph: 2.1.1. right to Consultation over the Rapa Nui Mayor and the Island Governor. Rapa Nui prior to submitting the reform Bill to Migration Control. “The Rights to reside, stay and transfer to and The Governor will be the chairman and will have Congress. from any place in the Republic, guaranteed speaking rights only. The limitations of this body Another historical demand of the Rapa Nui is for The consultation process was criticized for not in number 7° of Article 19, shall apply in said are clear: its main powers are to oversee and controlled migration to Rapa Nui. Generalized complying with international standards that territories in the manner determined by the approve distribution of the island investment noncompliance and lack of implementation require intercultural dialogue, but instead being special laws that regulate their exercise, which program proposed by the Island Governor. by the Chilean government of the right to treated as an information gathering exercise. must be of qualified quorum”. consultation of indigenous peoples is evident in CODEIPA would be replaced by a “Land Despite criticism it was validated by Rapa Nui the legislative process established for migration The Bill no longer restricts the right of freedom Commission” established to regularize Rapa Nui organizations. The project was submitted to control to Easter Island. of movement, but simply regulates its exercise. property ownership. The Commission would the vote of the Rapa Nui by a plebiscite held It eliminates references to environmental comprise the Island Governor, who would After the introduction of the new Article 126 bis on October 24, 2009, in which more than 700 protection and sustainable development on preside; 5 Rapa Nui members; the President of of the Constitution, a constitutional amendment persons participated. The text was approved Rapa Nui that were contained in the original Bill, the Elders Council; the Mayor of Easter Island; was submitted to permit migration control in by over 96% of those who voted. The plebiscite as recorded in the report prepared by the House 1 representative of the Ministry of National the territories of the Juan Fernández archipelago contained the following: “Do you agree for the of Representative’s Committee on Constitution, Assets; and the Director of the CONADI office and Rapa Nui. 41 Constitution to be amended in order to restrict the Legislation and Justice dated November 02 of on Easter Island. However, no new powers exercise of free circulation, permanence or residence, 2010. Page 1 of that Report states: are contemplated to reverse the shortage of The Rapa Nui demand for migration control for the purpose of protecting the environment and lands held by the Rapa Nui, and, even more is based on concern to preserve their culture the sustainable development of the Island?”. worrisome, the collaboration that CODEIPA and territory, a fragile ecosystem that will suffer grants to CONAF in the administration of the irreversible environmental damage if the island’s demographic carrying capacity is not regulated. National Park would come to an end. This would 42 report submitted by the Government end what little participation Rapa Nui currently Commission, Decentralization and regionalization have in the administration of this protected area, of the senate, dated December 17, 2009, the bill amending Article 126 bis of the which is the primary patrimony of the Rapa Nui. 41 submitted to Congress by means of Presidential Constitution of the Republic, on special Message N°1487-357, dated October 28, 2009 territories of easter Island and Juan fernández (Legislative Bulletin N° 6756-07). Archipelago . 43 Official Letter N° 171-359 datedS eptember 06, 2011.

18 REPORT RAPA NUI rePORT RAPA NUI 19 “I.- CENTRAL OR FUNDAMENTAL IDEAS. the Rapa Nui he perceived a strong sense of Tomas was greeted as a “teina” (sister) coming bringing pressure to bear on recognizing their identity and, in fact, that concrete manifestations home by the Rapa Nui. In the evening of the ancestral property rights to the lands on which The central idea of the initiative is to amend of this can be found. The widespread use of second day she was received by a Rapa Nui these buildings were located, and to the rest of Article 126 bis of the Constitution, to allow the language is one of the most compelling women’s organization, Makenu Re’o Rapa Nui, the island which currently has the status of fiscal to legally establish on the island territories of demonstrations of their identity that a visitor can with the traditional “karanga” (formal welcome property of Chile. Easter Island and Juan Fernández, restrictions experience. At the same time, in conversations through song), followed by prayer, rituals, and to the rights of permanence or residence and to These occupations principally included: with the people it is clear that they know their the blessing of food, which were familiar to her the free circulation to them, for the purpose of own history, both ancestral with other parts of as they corresponded to common practices in a. Private property - the Hotel Hanga Roa land protecting the environment and ensuring their the Pacific and more recently with Chile asa the customs of the Maori in Aotearoa. As a first- that was transferred by the State to private sustainable development”. 44 colonial power. time visitor, she was able to communicate in a entities without the consent of the Hito Clan. The amendment, which was approved by the language that was mutually understandable. “It Professor Tomas, a Maori legal researcher b. Civic Center - 6 fiscal properties occupied by Congress of Chile in January 2012, seriously was like being welcomed home”, she said. knowledgeable about Pacific peoples, stated the Tuko Tuki Clan. violates the will of the Rapa Nui people as that the Rapa Nui people and territory possess Although Rapa Nui is not explicitly named in expressed by popular vote, and the right unique characteristics that will influence the the list of territories permitted to achieve total c. riro Kainga Plaza occupied by the Rapa Nui of indigenous peoples to be consulted on way that self-determination is assumed. She independence by adopting the legal “blue Parliament and clan members. legislative measures that affect them. It is our observed that Rapa Nui cultural links and water” thesis promoted by the United Nations view that the right to consultation also includes According to information gathered during identification with Pacific peoples is stronger in the 1950’s and 60’s, it satisfies the founding any modification of essential matters agreed the mission, the government reacted to the than with fellow . In particular, it was criteria of being a culturally and physically upon in previously consulted projects. There situation by initiating a process of dialogue obvious that: distinct nation that is separated from Chile by is an urgent need for the Chilean legislature to with discussion groups, by sector. However, 4000 kilometers of ocean. determine how it will fulfill its duty to consult - Rapa Nui language, culture and physical at the same time, it also criminalized the properly with indigenous peoples. appearance have strong Tahitian and Maori However, any aspiration to pursue full actions of protesters and increased the police associations. independence from Chile is mitigated by the presence on Rapa Nui. The increased police small size of the island, the scarcity of natural presence created an unprecedented climate - The friendly and inclusive “collective” of militarization on Rapa Nui. The issuing and 2.1.2 Conclusion resources, and its isolation. In similar situations, community style that governs personal and by way of comparison, certain other Pacific carrying out of administrative and legal eviction interactions amongst the Rapa Nui are It is our Opinion that the demand for self- Islands, such as , , and the Cook orders in a violent and harassing manner further characteristic of Polynesian society. This determination by Rapa Nui is oriented towards Islands, which had the opportunity to assume exacerbated the situation. differs considerably from the rugged exercising greater autonomy in the form of self- the status of fully independent territories under individualism found within Western society. On August 06, 2010, the Minister of Internal government, under the terms established by the scheme promoted by the United Nations, Affairs, Rodrigo Hinzpeter, undertook to the UN Declaration on the Rights of Indigenous chose to enter into Free Association with - The Rapa Nui language contained many establish work committees that would address Peoples. To make this demand a reality, an internal Aotearoa, New Zealand instead. words used by the Maori of Aotearoa, New the demands of the Rapa Nui within 60 days. discussion is required amongst the Rapa Nui, Zealand. For example: “pono” truth; “tana This included demands for land (including the along with an intercultural discussion between We reiterate that most Rapa Nui did not seek full ingoa” his or her name; “henua” land/territory; occupied lands), migration problems, the Statute the Rapa Nui and the State of Chile. Discussions independence from the Chilean State, but rather “tangata henua” people of the earth; “mana” for Rapa Nui Autonomy and the preparation of a must be carried out in the utmost good faith. We desired forms of self-government that gave authority/prestige; “tapu” sacred/restricted. Development Plan for the Island. suggest that it would be beneficial to keep in them greater control of their lands and affairs. mind the unique characteristics of the Rapa Nui Professor Tomas also observed that Rapa The following work committees were created: and to look at comparable systems from other Nui culture is based upon a deep bond that Pacific nations that share a common history connects the “wairua” (spirit) of the land (henua) 2.2. Territorial Rights - “Migration”, headed by the Deputy Minister with the Rapa Nui in order to forge the best way with the spirit of the people (tangata). This is of Internal Affairs, Rodrigo Ubilla; 2.2.1 Lands Occupations forward. also typical of the relationship of the Maori and - “Administrative Statute”, headed by the other Polynesian peoples with their world, and As indicated above, the Rapa Nui people have Of particular importance in this regard are the under-secretary of Regional Development, their ancestors (tupuna), and is expressed in the been deprived of a large part of their ancestral observations made by the anthropologist, Miguel Flores; genealogy of their families (hakapapa). territory. Most of it is now held by the Chilean Alberto Chirif, who states that when talking with Treasury. In August 2010, members of the Rapa - “Development Plan”, headed by the Intendant The Maori of Aotearoa and the inhabitants of Nui carried out peaceful occupations of public of Valparaíso, Raúl Celis; and Rapa Nui share common ancestors. Professor 44 The highlighting is ours. and private buildings in Hanga Roa, as a way of

20 REPORT RAPA NUI rePORT RAPA NUI 21 A contingent prepared for the eviction of the Hitorangui clan from the Hanga Roa Hotel, on Demonstration in support of the Hitorangui clan and their land claims, February 26, 2011. Isabel Burr, Sacrofilms files. February 2 of 2011. The eviction was implemented without previous judicial order two days prior to the judicial hearing where the formalization of the clan members took place. Isabel Burr, Sacrofilms files.

- “Land”, headed by the Deputy Minister of Island Development Plan”. The Plan was criticized members of special police forces were sent from told that the police used unnecessary violence National Assets, Carlos Llancaqueo (current by the Rapa Nui because it involved projects and Chile in October and another 90 were sent in to arrest some occupants. presidential commissioner for Easter Island). resources that had already been committed to December. The number of detectives on the This event led to a request for precautionary by the previous administration, as for example Island was also increased. The Attorney General The dialogue opened up by the Chilean measures from the Inter-American Commission resources already allocated for the Hanga Roa appointed a Deputy Prosecutor specifically for government through work committees on Human Rights, made through the Indian Law Hospital. It was also criticized for not complying the criminal cases arising from the land claims. to resolve the disputes was conditional Resource Center, representing the majority of with promises made for a migration statute by on protestors leaving claimed lands. This In this context, the following events were Rapa Nui Clans (filed under Nº MC- 321-10). December 2010, something which has still not requirement guaranteed limited Rapa Nui highlighted: been agreed with the Rapa Nui. On the same day, September 07, members participation from the outset. It was also claimed of the Clan returned to occupy the hotel. The that the committees lacked transparency, that In late December 2010 the Government provided occupation lasted until February 06, 2011. This no minutes were kept, and no official documents a private summary of the work committees to a. Occupation of Hotel Hanga Roa was 2 days before a court hearing before the were issued by the committees. The committees members of the CODEIPA and to the authorities by the Hitorangui Clan Easter Island Supervisory Judge of charges were viewed with skepticism by many Rapa Nui of Easter Island, but the information was not against the Hitorangui and of their claim that and their organizations, to the extent that some made publically available to the Rapa Nui. The We were advised that on September 07, precautionary measures relating to fundamental withdrew their claims from the process. Thus, for document was described by the government 2010, a warrant was issued by the Easter guarantees of civil rights do not constitute example, the Hito Clan, who claimed lands on as a “diagnosis of the situation based on which Island Supervisory Judge, Mr. Bernardo Toro, crimes. The Police allowed more than six months which the Hotel Hanga Roa is currently located, Government proposals shall be made”. It does not authorizing Police, without prior notice to the to elapse from the start of the occupations did not present its records and information to contain solutions that have been agreed upon accused, to enter, register, and seize from the before asserting the crime of usurpation and the “Land” work committee. with the Rapa Nui to address their legitimate Hotel certain electronic equipment in risk of using their powers under Articles 83° and 206° of demands and claims. being damaged by the “occupiers”. Police and On October 22, 2010, after the 60 days in which detectives entered the Hotel Hanga Roa and the Criminal Procedure Code to carry out violent the government promised to deliver the results In regard to the criminalization of protest, began evicting people. The occupiers included evictions at the Hotel. That they detained two of the work committees had elapsed, the in October and December 2010, an extra children, women, and senior citizens. We were women using private vehicles owned by the Minister of Internal Affairs announced the “Easter emergency police force was mobilized. 40

22 REPORT RAPA NUI rePORT RAPA NUI 23 This event was included as additional information exceed what is necessary and proportionate to in the request for precautionary measures to the ensure the safety of the island’s inhabitants. IHRC and led to a notification being sent to the (…)”. United Nations Special Rapporteur on the Rights “I have also urged the Government to make of Indigenous Peoples, Mr. James Anaya. every effort to conduct a dialogue in good faith Subsequently, in mid December, in hearings with representatives of the Rapa Nui people to held in two criminal investigations before the solve, as soon as possible the real underlying Easter Island Supervisory Judge, the prosecutor problems that explain the current situation. I formally charged five members of the Tuko Tuki believe that it is particularly acute in relation Clan with the crimes of peaceful usurpation and to the recognition and effective guarantee of unauthorized entry of abode. In these hearings, the right of Rapa Nui clans on their ancestral precautionary measures were enacted which lands, based on his own customary tenure, in prohibited access to buildings, by virtue of which accordance with ILO Convention 169, of which the Police then proceeded to evict occupiers Chile is a party, and other relevant international from the Civic Center. Clan members denounced standards. the violation of a series of procedural guarantees “Finally, I made an urgent appeal to Government in the hearings, such as the exclusion of an to take the necessary measures to avoid threats interpreter requested by the defense. They also or harm to the physical safety of members of the denounced the eviction of people who were Rapa Nui people and punish those responsible not included in the precautionary measures but for any excessive or disproportionate use of Violent eviction of the Civic Center on December 3, 2010, which resulted in more than 20 Rapa Nui injured by rubber who were still threatened with excessive use of bullets shoot by Carabineros de Chile and Policia de Investigaciones. Among them was Edith Chavez Atan. force during the police operations of eviction.” force. On February 07, 2011, the IHRC granted This event led to sending another letter of a precautionary measure in favor of the Schiess family, was later denounced by lawyers Hitarangui Clan members, after being evicted notification to the United Nations Special Indigenous Rapa Nui people on Easter Island, of the Hito Clan. on February 06, 2011, and formally charged on Rapporteur on Indigenous Rights, Mr. James in Chile (MC 321/10), requesting the State of February 08, 2011, are still awaiting trial for the Anaya. Prior to this, in January 2011, the Public crime of usurpation. It is claimed that this delay Chile to immediately cease the use of armed Prosecutor’s Office issued a search warrant violates their right to due legal process. violence in the execution of administrative or for the Hotel Hanga Roa, based on the crime judicial State actions against members of the c. Riro Kainga Plaza of usurpation, without legally charging the Rapa Nui, including evictions from public spaces Hitorangui clan, or holding a court hearing. The or fiscal or private property; to ensure that the b. Civic Center On December 29, 2010, another violent eviction warrant was not implemented. was carried out in the Riro Kainga Plaza occupied actions of Government agents, in the framework On December 03, 2010, Police and detectives of the protests and evictions, do not put the A few days earlier a ban had been placed by by the Rapa Nui Parliament and members evicted people from a property in the Hanga life or the personal integrity of members of the Police prohibiting people entering the Hotel of the Rapa Nui Clan, culminating in several Roa civic center, an area claimed by the Tuko Rapa Nui people at risk; to inform the IHRC in a Hanga Roa. It is claimed that this was used to people being injured and 10 arrested, two of Tuki Clan. A total of 17 persons were injured in period of ten days about the adoption of these harass the Hito family, as food was only allowed whom were left in custody for law this episode, and in some cases the “perdigones” precautionary measures; and to update this into the facilities after those providing it had first breaches. This situation was also notified to the (shotshell) used has not been able to be information periodically. been registered and photographed by Police. Rapporteur Anaya. extracted. Some detainees were taken to the In addition to the aforementioned Precautionary The above orders led the Hito Clan to request Mataveri Police Station while others were On January 12, 2011, the United Nations Special Measure issued by the IHRC and the Statement a hearing for precautionary measures in the taken to the local hospital. The families allege Rapporteur on Indigenous Rights issued a of the United Nations Special Rapporteur presence of the Supervisory Judge, in addition mistreatment inside the Police Station and statement concerning the situation of the Rapa on Indigenous Rights, the criminalizing of to the pending charges (February 08), and negligent delay in obtaining medical care. They Nui, in which he stated that on January 10, 2001, occupation and accompanying police abuse the filing of a complaint based on violation of also denounced the taking down and burning he recommended the following to the Chilean generated a series of denouncements by Constitutional Rights to the Appeals Court of of Rapa Nui flags that flanked the disputed Government: the Rapa Nui and their representatives. They Valparaíso (which was dismissed). property, by the Police. “(…)to prevent further evictions and to ensure held marches and demonstrated, filed written that police presence on the island does not

24 REPORT RAPA NUI rePORT RAPA NUI 25 complaints with the authorities, filed lawsuits lands, ensure their appropriate exploitation, their and possession rights through an adequate ownership, because it had not ensured “the use alleging police abuse, as well as engaging with ecological balance, and favor their expansion”. 45 procedure, is the cornerstone upon which and enjoyment of the properties of the Community Parliament members and the National Human the system of land rights lies, established by members; it has not delimited and demarcated its ILO Convention 169 requires Governments to Rights Institute, which has reported on the the Convention. The concept of traditional communal property, and has granted concessions respect the special importance of indigenous situation. occupation may be reflected in different to third parties for the exploitation of assets and peoples’ relationship with their lands and manners in national legislation but it should be resources located in an area which may correspond, In our view, the land occupations are a strong, territories, understood as “the total environment applied”. 48 fully or partially, to the lands which should be determined call for the Island lands to be of the areas which the peoples concerned occupy delimited, demarcated and titled”. returned to Rapa Nui control. The land claims or otherwise use”.46 The Convention states that At the same time, Article 26.1 of the Declaration described above are all on the main street, in the right to ownership and possession of lands on the Rights of Indigenous People states Awas Tingni recognizes and establishes: a small area that the State ring-fenced for Rapa traditionally occupied must be recognized and that Indigenous Peoples have the right to “the 1. The value of communal property of Nui occupation after they were forcibly removed that the use of lands to which they have had lands, territories and resources which they have indigenous peoples under Article 21 of the from their lands and sent to Hanga Roa in the historical access must be ensured, including traditionally owned, occupied or otherwise used or ACHR; late 19th century. lands not exclusively occupied by them. In acquired”, including not only the lands that they addition, it compels State parties to take the “traditionally occupy” but also lands that have 2. The validity of the possession of land based steps necessary to identify such lands and been confiscated illegitimately. This is reinforced on indigenous customs, even in the absence 2.2.2 return of Lands to establish adequate procedures within the by Article 28, which states: of land titles, as being the fundamental basis national legal system to resolve land claims.47 of their ownership; Whether lands should be returned to the Rapa “[The] right to redress, by means that can Nui in individual land titles or under collective It is important to keep in mind that the include restitution or, when this is not possible, 3. The need for the close relationship that title is something that needs to be worked out committees who supervise the ILO Convention just, fair and equitable compensation, for the indigenous people have with their land by the State with Rapa Nui, within the framework 169 have been adamant in maintaining that the lands, territories and resources which they have to be recognized and understood as the set by international standards and respecting right to land ownership under Article 14 not only traditionally owned or otherwise occupied or fundamental basis of their cultures, spiritual traditional Rapa Nui land uses. It is important not obliges States to protect and recognize those used, and which have been confiscated, taken, life, integrity and economic survival; and to be stalled by paternalistic fears, such as those lands legally owned by indigenous peoples, occupied, used or damaged without their free, 4. The obligation of States to delimit, demarcate, expressed by a Chilean government authority but also includes traditionally occupied lands to prior and informed consent”. and give titles to community territory. who told us that returning lands to families will which they do not have legal title. The Inter-American Court of Human Rights only create inequality among its members. Thus, the ILO Committee of Experts on has adopted and developed land rights in its The Court has reaffirmed its interpretation of the scope of indigenous land rights in later cases. Ancestral indigenous ownership of a collective the Application of Conventions and jurisprudence. Since the Awas Tingni case, it It has recognized rights of a communal nature nature enjoys widespread recognition in Recommendations, with respect to a claim has insisted on the importance of recognizing over ancestral lands to communities in Yakye Axa international human rights laws, through legal filed for the violation of ownership rights of the close ties of indigenous peoples with their vs. Paraguay (2005), Sawhoyamaka vs. Paraguay instruments ratified and in force in Chile, as well indigenous peoples in México in 2009, stated lands, emphasizing that “they must be recognized (2006), and Xámok Kásek vs. Paraguay (2010). as under the Indigenous Law. the need to acknowledge traditional ownership. and understood as the fundamental basis of their The Committee stated in its 2009 report: cultures, their spiritual life, their integrity, and their Unlike the Awas Tingni case in which the land Article 1° of Chilean Indigenous Law N°19,253 economic survival”.49 claimed by the indigenous peoples was held by of 1993 recognizes that for “indigenous peoples “If indigenous peoples are unable to enforce the State, in these cases the land was owned by of Chile...the land is the main foundation of their their traditional occupation as a source of In Awas Tingni vs. Nicaragua (2001), the Court private third parties. existence and culture” and places a duty on the ownership and possession rights, Article 14 of declared a violation by Nicaragua of Article 21 the Convention would be emptied of content. of the American Convention of Human Rights Chilean government to promote and respect In the Yakye Axa case, the Court ruled that The Committee is aware of the complexity of [“ACHR”], which protects the right to land their lands: “[I]t is the duty of society in general indigenous communal property prevailed turning this principal into legislation, and of and the State in particular, through its institutions, over private property. It held that the ACHR designing adequate procedures, but stresses to respect, protect, and promote the development recognizes the subordination of the use and of indigenous peoples, their cultures, families, at the same time that the recognition of 48 INTERNATIONAL LABOR CONFERENCE, Report of the Committee of Experts on the Application of enjoyment of properties to social interests and traditional occupation as a source of ownership communities, adopting the appropriate measures Conventions and Recommendations, Report III (Part the close ties of the indigenous peoples to for said purposes and to protect indigenous 1a) General Report and referring to certain countries, International Labor Conference, 98th session, 2009, natural resources associated with their culture. It 45 The highlighting is ours. p.742. recognized the spiritual elements that emerge from their cultural relationship and which must 46 Article 13 of the ILO Convention 169. 49 Inter-American Court, Case of the Mayagna Community (Sumo) Awas Tigngi vs. Nicaragua (2001), be safeguarded under Article 21 ACHR. 47 Article 14 of the ILO Convention 169. parag. 149.

26 REPORT RAPA NUI rePORT RAPA NUI 27 The State was ordered to adopt measures to In establishing parameters for determining the ACHR as including the right of members of is held by indigenous peoples and/or local return traditional lands to the community, or if when the relationship of indigenous peoples indigenous and tribal communities to freely communities under diverse forms of institutions, impeded in doing so, to provide the community with their traditional lands provides a justifiable determine and enjoy their own social, norms, customary or legal, formal or informal”. with land of the same size and quality, chosen by claim to the land, the Court stated: cultural, and economic development as This definition includes two large categories: agreement with community members. established in the Covenants. It stated that 1. Areas and territories of indigenous peoples “[T]o determine the existence of the Article 21 of the American Convention cannot that are established and managed by them In the Sawhoyamaxa case, the Court found that relationship of indigenous peoples to their be interpreted as limiting the enjoyment and and 2. Community conserved areas that are Paraguay violated the community’s right to traditional lands, the Court has established exercise of the rights recognized by Suriname in established and managed by the community. communal ownership. It held that possession that: i) it can be expressed in different ways these Covenants.53 of land is not necessary for recognition of depending on the indigenous people concerned Moreover, in the 2008 World Congress, the IUCN ownership by the State and that indigenous and the specific circumstances that exist, The situation in Aotearoa New Zealand is an adopted 2 important resolutions: ownership rights over their ancestral lands are and ii) the relationship with the land must example of the types of future problems that 1. resolution 4,049 calls upon IUCN members not extinguished while they maintain their be possible. Some forms of expression of this can arise if land is returned in collective title. It to: relationship with their lands, whether material or relationship could include the traditional use or may be helpful to review models of collective spiritual. presence, through spiritual or ceremonial ties; land ownership in Aotearoa and other parts of “(a) Fully acknowledge the conservation sporadic settlements or cultivation; hunting, the Pacific to learn about the types of problems significance of Indigenous Conservation In Xámok Kásek, the Court reaffirmed this fishing or harvesting seasonal gathering or encountered and how these have been Territories and other Indigenous Peoples’ jurisprudence, which has been systematized by nomadic activities; use of natural resources overcome. and Community Conserved Areas - (ICT and the IHR Court as follows: associated with their customs, and any other IPCCA) – comprising conserved sites, territories, Around 70 percent of Rapa Nui lands are held “[T]he Court recalls its jurisprudence in respect element characteristic of their culture. The landscapes/seascapes and sacred places - by the State of Chile. A large part of this land to communal ownership of indigenous second element implies that the community governed and managed by indigenous peoples is protected as conservation land under the lands, according to which: 1) traditional members are not prevented, through no fault of and local communities, including mobile Rapa Nui National Park. This designation was possession of indigenous people of their own, to perform those activities that reveal peoples; made without the consent of the Rapa Nui, land has effects equivalent to a property the persistence of their relationship with their 51 who are also excluded from participating in the (b) support the fair restitution of territorial, ownership title granted by the State; traditional lands”. administration of the Park. land and natural resource rights, consistent 2) traditional possession grants to the Additionally, Saramaka community vs. with conservation and social objectives as indigenous peoples the right to demand We suggest that a system for co-managing the Suriname (2007), the Court concluded that considered appropriate by the indigenous official recognition of ownership and Park with the Rapa Nui people be explored. We Article 21 of the ACHR protected the right to self- peoples and local communities governing its registry; 3) the State must delimit, are aware that successful, workable models of determination of indigenous peoples. It found existing ICTs and IPCCAs and/or interested in demarcate, and grant collective title of co-management exist in other countries in Latin that, in order to provide for continuity of their establishing new ones; lands to indigenous community members; America, in Aotearoa and may exist in other economic, social, and cultural lifestyle, they are 4) members of indigenous peoples that for countries as well. entitled to use and enjoy the natural resources 2. resolution 4,038 on recognition and reasons beyond their control have left or lost conservation of sacred natural sites in of ancestral lands traditionally occupied by them The guidelines proposed by the International possession of their traditional lands retain protected areas, including “…springs of pure necessary for their own survival. Union for Conservation of Nature [“IUCN”] are the right of ownership over them, even in water, glaciated mountains, unusual geological helpful, as they recognize Indigenous peoples’ the absence of legal title, unless the The Court made ​​a clear link between the rights to formations, forest groves, rivers, lakes and and Community Conserved Areas [“ICCA”] lands have been lawfully transferred to third ancestral property and the self-determination of caves - are today and have long been integral and define them as “protected areas where the parties in good faith, and 5) members of indigenous peoples, based on the application to human identity, survival and evolution”. It administrative authority and the responsibility indigenous peoples who have unwillingly lost of the United Nations Committee on Economic, also states “…that urgent action is needed possession of their lands, and these have Social, and Cultural Rights of common for culturally appropriate sacred natural site been legitimately transferred to innocent third Article 1 and the Covenants on indigenous conservation and management within (and parties, have the right to recover them or obtain peoples.52 The Court interpreted Article 21 of the Covenant. final Observations on the Russian Federation (the thirty-first session). UN DocE/C.12/1/ near) official protected areas”. 50 other lands of equal size and quality”. Add.94, December 12, 2003, paragraph. 11, in which the Committee expressed concern about the These IUCN guidelines, and the International “precarious situation of indigenous communities in the Human Rights Law applicable to the Rapa Nui, 51 Inter-American Court, Case of the Xámok Kásek State party, affecting their right to self-determination Community vs. Paraguay (2010), paragraph 112. under article 1 of the Covenant.” support the Chilean State restoring the lands traditionally occupied by the Rapa Nui, as 52 Committee on Economic, Social and Cultural 53 IHR Court. Case of the Saramaka people vs. Surinam 50 Inter-American Court, Case of the Xámok Kásek Rights, Consideration of reports Submitted (2007). Preliminary exceptions, Fund, Repairs and “indigenous conservation territories” under their Community vs. Paraguay (2010), paragraph 109. by states Parties under Articles 16 and 17 of Costs, paragraphs 93, 94 and 95. ownership and administration.

28 REPORT RAPA NUI rePORT RAPA NUI 29 3. Rights of Indigenous Peoples in Chile 4. Conclusions

In Chile, the Rapa Nui situation is framed within Decree 124 is seen as negating the The relationship between Rapa Nui and the State The regime imposed by Chile on the Rapa a general context covering several distinct consultation process under ILO 169, which, if of Chile is weak, and has recently been one of Nui violates internationally recognized indigenous groups. Rapa Nui do not have properly conducted, would involve providing direct conflict. It is characterized by mistrust human rights of indigenous peoples constitutional recognition, nor is there any official information, establishing open dialogue, and that is based not only on historical precedents, to territory, self-determination and political mechanism for consulting with them or ensuring then implementing the will of the indigenous but also on recent events that have involved the participation. their political participation. In spite of ILO people. It would also involve obtaining their violation of Rapa Nui human rights by the State. Chile confiscated the entire territory of easter Convention 169 being in force since September consent in regard to public decisions or policies, The historical literature consulted (including Island from the rapa Nui in 1933, when it 2009, no clear measures for its implementation or proposed legislation that affects them. In this the Report by the Historical Truth and New registered the territory in its name. This registration exist. regard, we have been informed that indigenous Deal Commission, official documents issued was repeated in 1967, after the establishment peoples have called for the repeal of Decree 124 During our visit most of the officials interviewed, by the Chilean State), and testimonies gathered of the Recorder of Deeds Office on Easter and a halt to mining and forestry investments, and as well as those consulted informally by us, stated on the island, all indicate that the annexation Island. Since registration, a few small plots of land any other projects which are intended to be that the government was applying an ad hoc of Easter Island to Chile was realized by means of have been granted to the Rapa Nui in individual carried out on Indigenous lands, because proper consultation process to indigenous peoples. an Agreement of Wills in 1888 between the land titles, while the Chilean State remains in consultation has not yet occurred. It was viewed as being inadequate because it Ariki (King), Atamu Tekena, and a representative of possession of over 70% of the territory. sought to achieve contradictory government The Vice-President of the Senate of the Chilean the State of Chile, the Naval officer, Policarpo Toro. The violation of Rapa Nui territorial rights is closely objectives. These were identified as follows: Government, the Institute of Human Rights, and Under this Agreement of Wills, an equitable linked to the recent criminalization of social Mapuche representatives, with whom we met, - Providing constitutional recognition relationship between the two peoples was protest. Rapa Nui viewed peaceful occupation as all spoke of the need to look at and redefine the to indigenous peoples; established in which the Rapa Nui accepted a legitimate way of supporting their land claims. content and processes of consultation. They the Chileans as “friends”, but reserved their lands In their view, these actions were met by excessive - establishing a new institutionalized stated that it was necessary for the Rapa Nui to and their right to govern the territory by their force by a Chilean state intent in its desire to indigenous framework suitable to exercise control over their internal affairs and for own authorities. This has never been respected repress. government; the State to support this change. Instead, by Chile. however, Chile has criminalized protests Regarding the right to self-determination, we - regulating environmental institutions and over long-standing land claims in 2010 and 2011. We were informed that the island was leased to found the Rapa Nui demand for some form providing for indigenous participation; This is a situation that deeply concerns us. foreign capital and the Rapa Nui were confined to of self-government to be widely held, and a small area of the island and subjected to a even supported by some Chilean government - Gaining approval for investment Finally, we received widespread system of semi-slavery. They were deprived of the members. The Chilean government, however, has projects involving indigenous land and natural complaints about indigenous interests being civil and political rights enjoyed by other Chileans not met this demand, despite signing the United resources, and undermined by the State’s “indigenous” agencies, until 1966 when they were finally granted Nations Declaration on the Rights of Indigenous which are managed and controlled by the - Determining an acceptable consultation citizenship. Peoples. The “Special Statute” that it is formulating State to meet its own economic needs and process with indigenous peoples. for easter Island does not meet international those of private investors. even though these After the enactment of the “Ley Pascua” in 1966, standards set under the Declaration. In our view, trying to establish a complete agencies have indigenous representatives, and in line with the recognition of the Rapa relationship model between the State and the representation is in the minority and limited to Nui as citizens, a Chilean administrative system Finally, we conclude that the Rapa Nui situation indigenous peoples without first developing a the role of “advisors”. There is no obligation to was established for the island and public services is hampered by continuing to be framed clear institutionalized process for consultation uphold indigenous views. were installed. within the general context for recognizing ALL has undermined the entire process. indigenous rights in Chile. This has resulted in a Mapuche representatives in santiago argued In spite of the above, the relationship between the lack of constitutional recognition of the special We are aware that this situation has altered since that Chilean legal structures must be modified two peoples is marked by unequal treatment by circumstances of Rapa Nui and a total lack our visit in August 2011. Resistance by indigenous to reflect the social and cultural needs of the the Chilean state, which still does not recognize of implementation of ILO Convention 169 in peoples to inadequate consultation processes people who are on the land, according to how the 1888 Agreement of Wills and imposes its own force in Chile since September 2009 especially has reduced discussions to “consultation about they identify themselves. Such structures should conditions on the Rapa Nui. in regard to political and territorial rights, the consultation process”. We are concerned not simply be imposed by the government, as it consultation and criminalization of political that no further progress has been made. cannot represent indigenous interests without protests. their permission.

30 REPORT RAPA NUI rePORT RAPA NUI 31 5. RecomMendations recognition of the language preservation rights fragile ecosystem that is especially vulnerable and declaration of official language as Rapa Nui, to irreversible environmental deterioration. the protection and administration by the Rapa In order to uphold their right to self determination, Nui people of water resources and groundwater, the migration control system should either be the protection of the coastline and declaration administered by the Rapa Nui, or through a of the entire Rapa Nui territory as Indigenous.55 system of co-management by the Rapa Nui and 5.1. As a general recommendation with that provided in Article 60 N° 20 of the Chilean state. Constitution of the Republic. The observers believe that the Chilean 5.3 Right to self-determination of the Rapa Nui government should review its relationship with 2. To grant an autonomous status for Easter the Rapa Nui people and reconstruct it on the Island, in accordance with the normative We recognize the right to self-determination 5.5. Recognize traditional ancestral Rapa Nui 1888 Agreement of Wills. This document should assumptions of the “Agreement of Wills”. of the Rapa Nui under the 1888 Agreement land ownership be recognized as an International Treaty which of Wills and international human rights law, 3. To recognize the exclusive right of the Rapa We believe that the State should recognize led to the annexation of easter Island by particularly the United Nations Declaration on Nui to land ownership on Easter Island, and traditional ancestral Rapa Nui land Chile, and as laying the foundation for an the Rights of Indigenous Peoples. In this regard, to promote plans and programs to ensure ownership based on international human ongoing institutional relationship with Rapa we understand that the Rapa Nui demand for self- the effective exercise of this right. This requires rights law applicable to indigenous peoples Nui. That relationship must be fair and equal and determination is oriented toward exercising repeal of article 1° of the L. Decree. 2.885 of 1979, and in compliance with the 1888 Agreement of it must guarantee full participation of the Rapa autonomy in the form of self-government rather currently in effect in accordance with article 79 Wills. This requires the regularization and return Nui, as well as their rights to territorial and self- than complete independence from Chile. of the Law 19.253 of 1993, which allows non determination in a form acceptable to them. of lands that were granted by means of Rapa Nui persons to be beneficiaries of Easter We consider the development of a statute temporary land titles or assignment of rights by This view is supported by the National Island lands. that defines the foundations for a regime of the State of Chile to members of the Rapa Nui in Commission on Historical Truth and autonomy in internal and local affairs essential. Its Hanga Roa, and which are currently being held 4. To promote and fund programs aimed at Reconciliation, which expressly states with formulation must include the active participation by the State of Chile or by third parties other guaranteeing the well being and development regard to the Rapa Nui that: of the Rapa Nui, using their own representative than the rapa Nui, as well as lands that were of the Rapa Nui people. In this context, it is institutions. It must allow them to set their confiscated by the state registration of Island “Taking into consideration the above considered as a priority to provide Easter Island own priorities for economic, social, and cultural lands. and also the geographical particularities with its own budget, which enables funding development, in accordance with the United of Easter Island and the ethnic such plans and programs. The budget should Whether land should be returned in collective Nations Declaration on the Rights of Indigenous and demographic composition that be defined by the Executive power at the central or individual title is something that should be Peoples. characterizes it, the Commission is of the level, in direct coordination with the recognized discussed and decided with the rapa Nui, but view that the commitments made between authorities in Easter Island.”54 it should be held in a form that is secure from the Rapa Nui people and the State future appropriation by the Government or 5.4. Legislation to control migration to Rapa Nui of Chile under the “Agreement of Wills” are foreign interests. fully contemporary and are an excellent basis 5.2. Recommendations made ​​by the We consider the establishment of legislation to We support the administration by for building an equitable relationship between National Commission on Historical control migration to rapa Nui to be essential. the rapa Nui of such lands as indigenous the State of Chile and the Rapa Nui people, in Truth and Reconciliation Its contents should be formulated together conservation territories and sacred sites in the present historical moment. In this context, with the rapa Nui, fully respecting the We also share other recommendations made​​ accordance with IUCN guidelines. it is recommended to adopt the following international standards for proper by the National Commission on Historical Truth measures: consultation with indigenous peoples. This and Reconciliation, especially those concerning should be done in a way that ensures the 1. To ratify the Agreement of Wills by the the protection and conservation of Cultural 5.6. The criminalization of Rapa Nui social preservation of the culture of the Rapa Nui National Congress which should be approved and Natural Heritage. We recommend the protest should cease as Law, because it contains general and and the protection of the island territory as a mandatory norms that establish the essential We recommend that the criminalization of Rapa bases of the legal system that will thereby Nui social protest should cease and that the State 54 National Commission on Historical Truth regulate the relationship between the State of and Reconciliation Report, second part of should refrain from further actions involving Chile and the Rapa Nui peoples, in accordance recommendations, Page 571. Available at: 55 National Commission on Historical Truth violence against the Rapa Nui, particularly the [http://www.memoriachilena.cl/upload/ and Reconciliation Report, second part of mi973056855-2.pdf ], translated by the authors recommendations, p. 559. Available at : [http://www. use of disproportionate police force against of this report. memoriachilena.cl/upload/mi973056855-2.pdf ]

32 REPORT RAPA NUI rePORT RAPA NUI 33 those involved in peaceful occupation. Peaceful ANNEX resolution of conflict should always be sought, through intercultural dialogue and with Violations of the rights of the Rapa Nui People and Rapa full recognition and respect for the rights of Nui individuals, according to the American Convention the Rapa Nui. on Human Rights1

5.7. We share the concern of various international human rights organizations relating to the Article 5. Right to Personal Integrity Article 7. Right to Personal Liberty situation of indigenous peoples in Chile. It is often said that the moral integrity of the Evictions without a Court order. The evictions In this regard, we agree with and adopt the Rapa Nui has been denied by the State of from the Civic Center were not preceded by a recommendations made by the special Chile throughout the history of Rapa Nui. “court order for eviction”. The occupants who Rapporteur on indigenous rights, as proposed The usurpation of their ancestral lands by the had been charged the day before at the initial to the Chilean government in his 2009 report, Chilean Government and their forced relocation hearing in court were ordered not to approach and highlight those that, according to what we to a small and enclosed area on the island is a the “residence of the victim”, by which was meant verified during our visit, are applicable to the continuous abuse that must be rectified. The the building located on the land being claimed. Rapa Nui: restrictions of the freedom of movement of The following day, in the presence of a large the Rapa Nui on the island deprive them of the police contingent, the authorities ordered these to proceed with the constitutional recognition freedom of access to their traditional territories injunctions to be executed ex oficio (without of the indigenous peoples and their rights of and of the use and development of their the request of the victim) and precipitated the consultation, in compliance with ILO Convention resources because these are under State control. incidents described above. 169 and the United Nations Declaration on the The historical consequence of these actions is to The response of the State, which consisted Rights of Indigenous Peoples; significantly undermine the cultural, social, and of shooting at seventeen people, was economic wellbeing and development of the to carry out a process of consultation with disproportionate to the objective of putting an Rapa Nui. the indigenous peoples about the definitive end to the activity of the protesters occupying consultation procedure to be implemented The Rapa Nui believe that their dignity as a people the public buildings. prior to taking any action or measure that may is gravely undermined by the Chilean system directly affect these peoples; of control over their lands. While international to establish a mechanism for recognizing agreements such as ILO Convention 169 speak Article 8. Judicial Guarantees the rights of indigenous peoples to land and extensively of “consultation” and “consent” in It was indicated to us that in the initial criminal natural resources based on ancestral occupation relation to activities carried out in their traditional hearings in December 2010, during which and use, resolving pending land claims and lands, Decree 124 weakens the due process charges were laid against members of the Tuko providing more resources to the government guarantees of the legal system in order to ensure Tuki Clan, a series of procedural safeguards were institutions responsible for this; and that the objectives of the State will prevail when clashes occur with indigenous interests. violated. They included the denial of the right to to adapt current legislation, involving both have an interpreter present, as requested by the public policies and sectorial laws as well as defense, in order to present the cultural aspects of the case in the language of the Rapa Nui and procedures for the acquisition of land, according Article 6. Prohibition of Slavery and Servitude to the standards of the ILO Convention 169 and in accordance with traditional law. Moreover, it international law. Up until 1966, the Rapa Nui had no citizenship was alleged that people were evicted who were rights and they were pressured to work as forced not listed in the injunctions prohibiting certain labor. persons from approaching the land in question, and that these people were threatened with violence.

1 Author of this Annex: Professor Nin Tomas.

34 REPORT RAPA NUI rePORT RAPA NUI 35 Also, we heard claims that rights were violated Article 15. Freedom of Assembly This right should be interpreted in conjunction Article 24. Equality before the Law that are expressly guaranteed by Subsection with the right to political participation The Chilean State’s response in criminalizing Rapa Under Chilean Law, the Rapa Nui have the 3 of Article 54 of Law N° 19,253 on Indigenous established in Article 23, so that indigenous Nui protests is disproportionate, considering the right to protection “as Rapa Nui”. Their special Peoples, and under international laws peoples, in accordance with their ethnic absence of a direct threat to public security, condition of “Tangata Henua” – people of the recognized by Chile. There is a State obligation belonging, shall decide and determine their wellbeing or to public morality presented by land of Rapa Nui, and their ancestral rights to to respect and take into account the customs own representative institutions. Rapa Nui Clans who were protesting to recover their territories should also be respected. These of indigenous peoples when implementing their ancestral lands. Their acts of protest did not latter rights have not been recognized by the national legislation, and to guarantee that native interfere with the rights of other members of the Chilean State, and the failure to do so affects the people can both understand and be understood Article 21. Right to Property public. It appears that the State triggered the dignity of the Rapa Nui, as individuals, and as in legal proceedings (Articles 8 and 12 of ILO violence of the protesters by forcibly removing members of an egalitarian society. Convention 169). An individual also has a right All the jurisprudence developed by the IHR them from the land. And when the protesters to be informed in his/her own language of any Court is applicable to the Rapa Nui case, based reacted, the authorities used excessive violence criminal charges, and to rely on the services of on the Awas Tingi case. to repress a situation they themselves had a translator (Article 14 of the Covenant on Civil Article 25. Judicial Protection created, and then justified their use of undue and Political Rights). force by criminalizing legitimate protest. We were told that the Rapa Nui do not have the Article 23. Political Rights In this respect, mention should be made that right to a simple, expeditious, and effective legal In this respect, people told us repeatedly that language is more than just words and sentences, The right to “participate in the conduct of public recourse that might enable them to exercise the evictions were not backed up by a court and that true depth of meaning cannot be affairs” is based on the necessity to guarantee their human rights to claim their ancestral lands order. communicated or achieved by imposing the that the “freely elected representatives” may and exercise their right to free determination as use of the dominant language (Spanish) on ensure a fair balance between the interests of a People. those whose mother tongue and concepts the State and the Rapa Nui, in as much as the of justice are derived from within a different Article 16. Liberty of Association Rapa Nui define themselves as a distinct group cultural context. Comprehension is better with a distinct ancestry, different from that of the Article 26. Progressive Development of Rights This right was forcibly violated by the police achieved through recognizing and applying the State that rules them. force, and by the authorities’ criminalizing the values, customs, and rules that are inherent in In the case of Rapa Nui this means helping actions of legitimate protest carried out by the the tangata henua mother tongue. The meaning of the term “participate” goes the islanders to achieve self-determination Rapa Nui. far beyond the need for the State to share by means of dialogue between the State and information with the Rapa Nui, or the State Rapa Nui leaders, and the implementation of informing itself of Rapa Nui points of view: it the necessary local and constitutional changes Article 13. Liberty of Thought and of Expression Article 20. The Right to a Nationality also means implementing the decisions and needed to ensure positive results for the Article 8 is supported by Article 13, which resolutions that are negotiated with the duly islanders. The role of the State is to aid this The Rapa Nui identify themselves as a people of guarantees liberty of thought and expression. mandated and elected representatives of the development, and not to put obstacles in its way the Pacific, rather than as members of Chilean The right includes a peoples’ right to search, Rapa Nui. by perpetuating an administrative system based society. With respect to a people’s collective receive and distribute information and ideas on laws that jeopardize the self-determination self-identity, the Inter-American Court is of the In this regard, the IHR Court has emphasized of any kind through the media of their choice. and self-realization of the Rapa Nui. To attain this opinion that the identity of each indigenous the obligation of the State to ensure the Refusal to allow the use of the Rapa Nui language objective, greater dialogue is needed between community “is a social-historical fact that is an participation of indigenous peoples, through in Court is a violation of Articles 8 and 13, which the Rapa Nui and the State, as well as a genuine essential part of the indigenous people’s autonomy”, their own representative institutions, in the support each other. desire on the part of the State to recognize the whereby it is up to the community in question affairs that affect them, and has also recognized interests of the Rapa Nui, particularly when these to determine its own name, composition and the relationship that exists between this right In the public protests during which public areas interests do not coincide with the economic ethnic belonging; the State or other external and the rights of participation and of free and and property were occupied, no real threat development agenda being pursued by the agencies cannot decide on their behalf or informed consent set out in ILO Convention ever existed to the rights of others, to their State. reputation, or to national security, such as might contest this matter: “the Court and the State must 169 and the UN Declaration on the Rights of have justified the excessive limitations placed on limit themselves to accepting the decisions made Indigenous Peoples. the protestors. In this sense, the State’s response by the Community in this regard, that is, in the was truly disproportionate. manner which the latter identifies itself”.

36 REPORT RAPA NUI rePORT RAPA NUI 37 INTERVIEWS

- Carmen Cardinali Paoa, Rapa Nui Governor;

- Jacobo Hey, Court clerk and former Governor of Rapa Nui;

- Luz Zasso Paoa, Rapa Nui Mayor;

- Juan Pablo Letelier, Senator and Vice- president of the Senate;

- Carlos Llancaqueo, Presidential Commissioner for Easter Island;

- Alfredo Seguel y Sergio Millaman, Mapuche, Grupo de Trabajo por Derechos Colectivos (G-TDC);

- Lorena Fries, Director of National Institute of Human Rights;

- Members of Rapa Nui Parliament;

- Members of Te Moana Nui A Kiva;

- Members of the Rapa Nui women organization Makenu Re’o Rapa Nui.

OtHER activiTIes

Participation in seminar on “Los Derechos Humanos de los Pueblos Indígenas y sus implicancias para el Rapa Nui people” (The Human Rights of Indigenous Peoples and their implications for the Rapa Nui People), held in Hanga Roa on August 1st and 2nd, 2011 summoned by the Rapa Nui Parliament, the Rapa Nui women’s organization, Makenu Re’o Rapa Nui, Conadi’s National Indigenous Council for Rapa Nui People, Rapa Nui clans, Indian Law Resource Center, and Observatorio Ciudadano (Citizen’s Observatory), with the participation of about one hundred representatives of the most important organizations of the Rapa Nui people.

38 REPORT RAPA NUI