Chacolinks

Support for the Wichí people of Argentina
Apoyo al pueblo Wichí de Argentina

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Legal Battles

January 2008 update on legal cases supported by Chacolinks

Chacolinks is handling 66 legal and administrative cases on behalf of the Wichí communities of the River Itiyuro Basin (also known as Zlaqatahyi, 'Our Forest'). This is a summary of the most pressing ones.

Case 1:
On 27 August 2007, Hoktek T'oi community began legal action against the provincial Ministry of the Environment for having illegally authorized the deforestation of over 800 hectares of native forest within the traditional territory of the community. The authorization was issued without consultation with the affected Wichí communities, in blatant violation of the constitutional rights of those communities. This is another case against the provincial government and will require unflinching litigation.

Case 2:
In the second half of 2007, work was begun on the construction of a highway through Zlaqatahyi. As a result, Hoktek T'oi community has been illegally dispossessed of a swathe of forest which has been cleared for road-construction purposes. The community has taken the Highway Department to court for compensation. Concerted action is needed both to sustain the ongoing case and to challenge the impact of the project on neighbouring communities.

Case 3:
On 27 November 2007, members of Hoktek T'oi, Sopfwayuk and Chowayuk communities brought to a standstill two bulldozers that were ripping out a tract of tropical forest (estimated at 375 hectares) without authorization. The abuse was immediately reported to the provincial Ministry of the Environment but, given the total lack of government response, it has now to be judicialized. (For televised coverage of the case, see Simon Reeve's BBC2 series on the Tropic of Capricorn, beginning in February 2008.)

Case 4:
On 3 January 2008 police brutally attacked a small group of Wichí men, women and children from the communities of Sopfwayuk and Chowayuk (neighbours of Hoktek T'oi) while they were protesting peacefully against the sowing of GM soya on land that they claim as part of their traditional territory. To date there have been twelve reports of police violence (involving guns, truncheons, boots and fists). At least three small children escaped to the surrounding forest, where they were lost for up to 24 hours. This is a criminal case against the provincial state (which is accountable for the actions of the local police) and, as we know from experience, the local judiciary is loath to put sanctions on the government, particularly when the plaintiffs are indigenous people. The slightest laxity in Chacolinks' legal representation of the Wichí victims will become an excuse for the judge to put the case on hold.

Update on Cases still Pending:

Land Rights

Since 1996, Hoktek T'oi community has been pressing to regain ownership of part of its traditional territory. In 2001 the community succeeded in seeing through a national law by which 3,000 hectares of land illegally sold into the private sector have been expropriated by the Argentine State in the community's name. The process of securing full title to the land is a slow and arduous one. Last year (2007) – six years after the law was passed – the community was granted rights to use and possession, but ownership is being delayed by the ex-title-holders, who are demanding exorbitant payments from the State.

In 2005, the Zlaqatahyi communities initiated a collective territorial claim under the terms of a Protected Areas Law that is in force in the province of Salta. As a first step towards regaining ownership of their traditional territory, eight communities petitioned the provincial government for the creation of a Cultural Reserve covering a total of some 100,000 hectares. The proposal was immediately shelved by the government, but needs urgently to be revived, now that a national law exists by which the Argentine State has committed itself to demarcating the traditional territories of the indigenous peoples of the country in the space of three years (of which two remain).

On 8 July 2005 police brutally attacked the Wichí communities of Holotaj and Tsofwachat who, with the support of the Zlaqatahyi communities, were protesting against the fencing-off of land by agro-entrepreneurs whose intention was to deforest the land and subject it to GM soya production. The land in dispute forms part of the communities' traditional territory. During the repression, one of the Wichí elders, José Galarza, received forty bullet wounds (mainly rubber bullets) and died fifteen months later. His sister, affected by tear gas, also died. The judge who is hearing the case is the same judge who ordered the police operation. He has consistently blocked the attempts made by the Chacolinks lawyer who is representing the Wichí victims to bring the police commissioner to trial. If the case is to have any chance of prospering, it will be necessary to take it to an appeals court.

Since 2002, Hoktek T'oi community has been seeking to sue the provincial Ministry of the Environment for complicity in the illegal deforestation of 3000 hectares of the community's traditional territory (this occurred years before the further deforestation of 800 hectares mentioned above in case 1). The lawsuit has yet to find a court in which to be heard, having been passed from one tribunal to another (six in total), all of which have declared themselves incompetent to take charge of the case. The action provides irrefutable evidence of government malpractice on behalf of agribusiness. As in the case of entry 5, the case needs to be beefed up in order to remove it from the jurisdiction of the local criminal courts.

Cultural rights

For more than two-and-a-half years – since 17 June 2005 – Qa'tu, a young member of Hoktek T'oi community, has been imprisoned on charges of rape, because his customary-law wife, Estela, is under age according to national law. Independent anthropological reports on the Wichí life cycle and marriage system have been submitted to the presiding judge(s). The reports consistently establish three fundamental principles: a) the onset of menstruation marks the passage for Wichí girls from the status of child to that of adolescent woman; b) the transition carries with it the option of sexual activity for the young woman; c) the choice of spouse or sexual partner is a Wichí woman's prerogative. Despite the evidence, ethnocentric bigotry has prevailed in this case, in open violation of internationally accepted human and indigenous rights. Thanks, however, to the untiring defence of Qa'tu by Chacolinks' two volunteer lawyers, he has yet to be brought to trial for behaving in accordance with his cultural traditions; this would be tantamount to trying him for being Wichí. The case is now before the Argentine Supreme Court, whose verdict with regard to the legitimacy of Qa'tu's imprisonment is awaited not only by Qa'tu himself but also by his young wife Estela, their two-and-a-half-year-old son and the community as a whole. Public opinion, expressed through the mass media, has played a large part in the persecution of Qa'tu by the provincial courts. If the Supreme Court toes the same line, it will be necessary to have the case heard in an international court of justice.

Several subsidiary lawsuits have arisen in connection with Qa'tu's imprisonment. One crucial case has been opened by Chacolinks' lawyers in order to establish the chronological age of Estela, whose birth was not registered at the time (as often ocurs in Wichí communities, far removed as they are from the nearest civil registry). According to two independent medical estimates, Estela was between 11 and 15 years old at the time of marrying Qa'tu. She herself told the judge that she was 13. If her age at the time is judicially established as 13 (or above), then the charge of rape against Qa'tu automatically falls and his imprisonment becomes unlawful. However, the judge in charge of this civil case shows no signs of being in a hurry to resolve the issue, and sustained pressure has therefore to be brought to bear by Chacolinks' lawyers in order to ensure that she reaches a conclusion.

It should be mentioned finally that indigenous-rights lawyers are few and far between within the jurisdiction of the courts that settle disputes concerning those rights. By taking on the legal representation of Wichí victims of injustice, Chacolinks' two consultant lawyers – América Alemán and Sarah Esper – themselves become the victims of persecution. América's name is bandied about in the press, and one judge is seeking to have Sarah struck off the professional register of lawyers on account of her dogged defence of her indigenous clients. The same judge also bears a grudge against Chacolinks' anthropological adviser, against whom he once issued an arrest order in relation to charges that were so spurious that in five years they failed to make any headway. Last month (December 2007) the charges were finally dismissed and the arrest order lifted.

There are two aspects to indigenous-rights advocacy. On the one hand, it consists in lobbying for favourable legislative measures. On the other, it boils down to lawyers and anthropologists working against the clock to bring the available legislation to bear on behalf of indigenous plaintiffs and defendants in specific court cases. This is where Chacolinks is vital. Please help us to keep our team of voluntary professionals at the scene of the crime.

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