The Mapuche People's Battle for Indigenous Land. Litigation as a Strategy to Defend Indigenous Land Rights

摘要

Land is the foundation for the economic sustenance of indigenous peoples and for the continued survival of their cultures. One of the major problems faced by indigenous peoples is the dispossession of their traditional lands and territories. The activities of business interests and economic development projects in indigenous territories – such as forest logging and infrastructure projects - and the environmental implications of such activities, often constitute a great threat to the livelihoods of indigenous peoples. Securing rights to land and natural resources therefore remains a priority issue.The paper examines the situation of the Mapuche people in Chile with respect to their rights to land, territories and resources, and discusses the role of litigation as a strategy to defend these rights. Litigation is seen as part of a broader strategy comprising political mobilisation and legal mobilisation, and the paper focuses on the interaction of these strategies in the Mapuche’s struggle to defend their rights to land. The success of litigation depends on factors impacting on the voicing of land rights claims and courts’ responsiveness to such claims. A major problem regarding the Mapuche’s possibilities for redress through courts is the low status of international legal instruments on indigenous rights and the insufficiency of national legislation on indigenous peoples’ land rights. The formalities of the legal system provide a disincentive towards pursuing a legal strategy. Lack of confidence in the judiciary and perceptions of racism are other barriers. Other problems relate to the legal culture, composition of the bench, conservatism and insensitivity towards the rights of indigenous people. The focus of the paper is a case involving the construction of a hydroelectric dam on the Bío Bío River in Southern Chile, causing the forced relocation of 500 people pertaining to Mapuche-Pehuenche communities and the flooding of their ancestral lands. This case is only one of many environmental conflicts in which the land rights of the Mapuche have been violated. In this case, litigation proved to be unsuccessful in the sense that the most of the lawsuits filed by the Mapuche litigants were ultimately lost, and construction on the dam was completed. However, the value of litigation as a strategy may be assessed in terms of the broader impact it had on Mapuche mobilisation and on public debate.