Legal Pluralism: Indigenous Law and the National Justice System

Based on doctrinal and legal considerations, this paper analyses the progress and setbacks of Chilean jurisprudence with regard to the recognition of indigenous customs, the justiciability of indigenous law and the implementation of a pluralistic legal approach. Since the entry into force of the 169 ILO Convention, there have been some developments in the jurisprudence pertaining to the legal recognition of the ancestral property right to water; rights of use, exploitation and protection of the land; natural resources and ecosystems that make up indigenous habitats; and the right to consultation taking into account the ethnic specificity of indigenous peoples. However, Chilean jurisprudence tends to protect the hegemony of State law and its structuring principles, both in criminal matters, where customary law can be applied exceptionally as a ground for excluding or mitigating criminal responsibility, and in civil matters, where the rules and principles established in the Indigenous Act and in the 169 Convention have been reluctantly adopted with regard to indigenous people’s right to property and possession of the land. Finally, the courts have not recognized the jurisdiction of indigenous authorities to resolve community conflicts.