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The historic ruling of the Argentine Justice on a Mapuche territory that could set precedents and prevent evictions by force

Posted: Nov 29, 2021 17:07 GMT

In 2019, the Che Buenuleo community settled peacefully on a property in the province of Río Negro, protected by the ancestral indigenous presence, but a private criminal denounced them.

It is not common for the Argentine Justice to take the side of the weakest, but sometimes it happens. This November 24, the Che Buenuleo indigenous community achieved a historic ruling of the Challenge Court of the province of Río Negro –to which this media had access–, which dismissed criminal charges to the Mapuches who had been denounced after settling in an ancestral territory, in the Bariloche area.

Although the substantive issue of the territorial dispute has yet to be resolved, the magistrates were clear in pointing out that the crime of usurpation does not exist, and that the conflict should not be settled in criminal justice. That is, before criminalizing aboriginal actions, there are other instances, in administrative offices or in the civil jurisdiction, to resolve this type of controversy. It is a decision that could pacify the area, and set a precedent in the province, while other Mapuche organizations run the risk of being forcibly evicted.

The resolution is relevant for communities because indigenous law was taken into account, made up of local regulations and laws, but above all, international treaties. Of this, Convention 169 of the International Labor Organization (ILO) stands out, which mentions the ‘traditional occupation’ of the territory. This is interpreted as the creation of land rights, the use of which determines the aboriginal way of life, and should be recognized beyond state authorization.

“Indigenous communities have territorial rights, which in no way conflict with private property,” say the judges. In effect, the Mapuches occupied the place according to their cultural bases, but never forcibly restricted its use to the private owner of the site. “The presence in that place of the members of the community is not due to the will to commit a crime, but rather to exercise a right. A right on which the State has not regulated or harmonized with other rights for a long time”, add sentence.

Attacks, threats and eviction attempts

In September 2019 the community held “an act of reaffirmation on part of their territory of traditional occupation “, reviews the lawyer of the Mapuches, Matías Schraer. almost 50 people that were installed on a perimeter of 90 hectares, in a total territory of about 480. This affected the interests of Emilio Friedrich, who proclaims himself as the owner of the place.

The lawyer tells RT that the community was threatened and intimidated “with firearms and bladed weapons” by an irregular group, which would respond to the private actor involved. Due to the incident, the Police arrived and the indigenous people were able to resist in the place, and they even had to be guarded. Later, Friedrich filed a complaint, and the provincial justice automatically ordered an eviction. “Through different presentations and appeals, we had it suspended,” says the lawyer.

Likewise, the case for alleged usurpation remained open, a crime that can be punished with up to three years in prison. And although the recent ruling can still be appealed to the provincial court, the fact that the highest criminal court has agreed with the aborigines, gives a good dose of enthusiasm in the community, after two years of litigation.

“They said that the community had entered a place that did not belong to them, using violent means. This was never the case and they couldn’t prove it, because the community held a ceremony in that conflict territory, in broad daylight, entering through the public access roads “, Schraer remarks.

“No one can usurp what belongs to him”

“Possession is having one thing. The private said that they had the thing. But we argued that the community held the traditional occupation, a distinct, indigenous possession. It means that the community may have lost the material element, but the link between the community and its territory it never broke, it was always current. That is the transcendental aspect of this ruling, “explains the interviewee.” No one can usurp what belongs to him, “he stresses.

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For the lawyer, from now on the lower magistrates should “take note” to apply aboriginal law. On this, he highlights: “Indigenous people have a lot of rights, but they are not used effectively. Many times the judges do not apply it due to ignorance, and others because they have strong interests. “

Furthermore, communities are often at a disadvantage in court. Schraer believes that criminal justice, from limited times in Río Negro, generally tends to restore the property to the private who holds the possession. “It is a problem for the communities, because they have to demonstrate that ancestral possession, and they have to resort to anthropological studies and other issues that cannot be resolved overnight, “he points out.

Meanwhile, other aboriginal groups in the province are in suspense, waiting to endure a possible expulsion at the hands of the security forces. “I am aware of three other communities with eviction orders,” reports the defender. And he concludes: “I want this ruling to have an impact on them and the lawyers can use it to avoid the criminalization of these territorial reaffirmations.”

Leandro lutzky

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Donna Miller

Donna is one of the oldest contributors of Gruntstuff and she has a unique perspective with regards to Science which makes her write news from the Science field. She aims to empower the readers with the delivery of apt factual analysis of various news pieces from Science. Donna has 3.5 years of experience in news-based content creation, and she is now an expert at it. She loves journalism, and that is the reason, she moved from a web content writer to a News writer, and she is loving it. She is a fun-loving woman who has very good connections with every team member. She makes the working environment cheerful which improves the team’s work productivity.

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