Benetton VS Mapuche.
The hearing of Benetton against the Mapuche family Curiñanco-Nahuelquir finished in Esquel. The indigenous couple had been accused by the South Argentina Land Company (CTSA), subsidiary of the Italian corporation, of seizing 530 of the 900,000 hectares they own in Patagonia.
Atilio Curiñanco and Rosa Nahuelquir had occupied, in August 2002, land which they considered communal -property of the state- to create a family settlement, but a few weeks after starting work, a complaint by the administrator of the Benetton estate derived in a violent eviction and the destruction of the work that the family had completed during the course of a month.
This was not, however, a simple litigation for a piece of land between a native family and a global corporation. In each testimony, in the pleas of the lawyers, and in the face of the two hundred delegates of Mapuche communities gathered, a deep discussion on the relations between native peoples, the State, justice and landowners, was witnessed.
The journalist is by definition an analyst of the day, and often we have the privilege to attend historical events. Yesterday was one of those days. For that reason, I believe myself entitled to take the liberty of exposing it at length. Being a long and complex discussion, I divided it in two parts. In the first section I will give account of the legal discussion, whether the Curiñancos are guilty or non guilty of usurpation. In the second, we will go deep into the civil discussion: who holds, according to the law, proper rights on that land, something to be determined on Monday, when Dr. Eyo, judge of this case, makes public the verdict that will take him five days to discern. Also, the complete plea of Dr. Gustavo Macayo, the defender of the family, will soon be available.
Below is the first part of a testimony of the day when a family and a town twisted the arm of both the state and the voracity of one of the new owners of the Patagonia.
A Mapuche family on the bench
The judge reads the charges; they're accused of dispossessing, by means of violence, the South Argentina Land Company (CTSA) from its property, a crime described as usurpation. In the room, nearly two hundred Mapuche, students and neighbors who arrived from all places to be present at the hearing, fall silent. The case was transferred to the Police Officers Casino, a hall that is mostly used for birthday parties.
Rose Nahuelquir and Atilio Curiñanco, the defendants, are first to testify.
Last year, as soon as the conflict started to receive national and international coverage, Benetton's representatives offered a settlement: if they relinquished the land, they would withdraw charges of usurpation, and everything would be forgotten. But for the Mapuche couple, there was no going back; they spoke their truth, in simple and sincere words, and they were not going to let anyone treat them like criminals. They rejected the agreement, which they considered another attempt to humiliate them, and there they were now, on the defendant's bench, exposing the landowners and the State for failing to acknowledge the rights of native peoples.
Rosa spoke first, with slow and spontaneous words; neither she nor Atilio had prepared a declaration. "It is not necessary -she said to us- I know very well what to say: the truth." During the last days, we saw them organize the lodging and cooking for their brothers and sisters who came from several points of the region to support them. They were hosts to more than a hundred farmers, old and young, who came down the mountain range, leaving their communities and their families to give them strength and solidarity in a defining point of their struggle.
Tuesday morning, before dawn, in the outskirts of Esquel, the Mapuche gathered for Nguilliatum, a traditional ceremony to interact with the forces of nature which they regard as family. There, Rosa and Atilio received the embrace of their kindred, mainly the elders. With tears in their eyes, shortly after a foggy and luminous dawn, they received the counsel and the blessings of the Lonko (Mapuche authorities). Doña Celinda anointed them both with Muday, a traditional Mapuche drink, and she gave them words in their secret language of the earth. The Lonko Segundino, who returned to Esquel after 72 years of absence to accompany them, gave them encouragement by holding against his chest the knife that has accompanied him for almost a century.
Then, on the cold deck of the court, counsel became words. Rosa and Atilio spoke of how, when they became unemployed, they decided to return to the land they had known and develop it with the little money left from their unemployment insurance. In February of 2002 they submitted an application to the IAC (Communal Institute of Colonization) requesting to settle a communal estate called Santa Rosa, neighboring the place where Atilio had been born and in the proximity of the Leleque Borough, property of the CTSA. They also explained how, six months after that request, and on the basis of an oral response from the organization, they went to the police station of El Maitén to declare that they were going to homestead the field. Soon they began to work.
"We did not tear down any fencing. There was nothing, Atilio explained. I had been born in that place and I know it very well. We occupied it by day, there was no violence... Nobody ever tended that estate. This whole thing has surprised us because they have not respected us... this is rather well known, it always happens to the underprivileged, it is proof of how they treat us, just as they did to our ancestors. With this, I feel morally and physically violated, because I lost everything and I don't know whether I am going to be able to recover it." Rose also stated that "they accuse me of usurping my own land, I was born in this land, I was not born in Italy...you can't come and accuse me of usurpation."
After their declarations, the seventeen witnesses who had sworn and promised to tell the truth, and nothing but the truth, started walking up to the bench.
First to appear was the administrator of the Benetton estate, appropriately named Ronald Mac Donald. His testimony was one of significance, because the accusations against the Curiñancos had been formulated on the basis of his complaint.
Seated in front of the judge, appearing somewhat nervous, perhaps because the corporation had switched strategy, he recanted on his previous testimony where he declared that the Curiñancos had cut the fencing to access the estate, that they had entered at night and that they had taken shelter behind the bushes to avoid detection. In his new declaration he no longer stated they had cut fencings, simply a rustic gate, and he also said that he saw the house by the road, from his vehicle.
Next in line was an employee of the CTSA, a caretaker named Nahuelquir -same as the defendant- who has been working at the estate for thirty years. His allegations had been quoted on several occasions by Mac Donald and the Company's attorney accusing the Curiñancos of usurpation.
None of the previous accusations resurfaced at the hearing. With much honesty, the old laborer declared that from his sentry post he had spotted the Curiñancos as they entered the estate. When he was asked to show the cut wires -which would demonstrate that the occupants had used violence- he said he hadn't seen any and that "they may have entered through the gate or jumped the fence." He also explained that so far, the only use of the estate was to lodge horses of those laborers who went to look for work at the CTSA, since they were not allowed to bring them in the premises, another witness indicated.
Both declarations caused very different reactions. Rosa Nahuelquir smiled for the first time that day; soon after the hearing started, the previous litany of fabrications from her accusers began to unravel. But outside the hall, on the other side of history, two young press agents for the CTSA kept pacing up and down, complaining on their cell phones that the first two witnesses had failed at their delivery.
The testimonies that followed were turning the court into a blur which, at times, seemed to be performing -or revealing- a theater of the absurd being staged. The argument about the wire-cutting was material to the charges which were being thrown at the couple, not only because the land occupied by Benetton is bound by a wire fence, but rather because if demonstrated, it would buttress the usurpation thesis.
The surveyors, whose testimonies will be analyzed in the second part, only demonstrated what the defense contended: that none of them can make declarations against the landowners because each one of them, sooner or later, will be their employee.
Some directors and employees of the IAC also testified, telling how the family had inquired at their offices about the field, and that such request had never been addressed in writing. Also, they renounced all responsibility and they denied having granted them permission to occupy the estate. With remarkable animosity, evident in the contemptuous tone of their words -answering questions from both parties- they demonstrated their ignorance about legislation on native land; especially concerning the required participation of native peoples in the decision process within their jurisdiction regarding these lands. Causing laughter and commentaries from the court, Ricardo Rojas had the gall of declaring that there is no vacant communal land. He declared that if there was any "everyone should have the same opportunity, because all we are Argentines", giving a glimpse of his adherence to the racist theories which disenfranchise native peoples, denying the laws that recognize them as preceding the Argentine state.
A correspondent of Indymedia Argentina, Hernán Scandizzo, stated in his declaration that, in a journalistic investigation in the region, a policy of systematic appropriation of indigenous territories on the part of the CTSA was discovered. He enumerated current and historical testimonies, gathered in Vuelta del Río, in Leleque, where an indigenous reservation was found wire fenced and also remains of what at some point was a house, and in other areas the same situation is repeated: natives dispossessed of their traditional land by landowners like Benetton. He also confirmed what several other witnesses had stated; that the estate was abandoned, that the fencings were fallen and that the only visible improvements were made by the Curiñanco-Nahuelquir family.
Another revealing testimony was given by police official Eduardo Quijón, known in the area to be a landowners' advocate, and always showing up as soon as an eviction, an argument or an accusation against Mapuche settlers ensues. The officer had a problem explaining why he wrote in a report that Atilio Curiñanco had cut the fencing to enter the estate. He admitted that he had not seen them at the moment they supposedly did it, and that he only found one wire cut out of the seven rusted, rotten and fallen fencing that encloses the property," (that's how he described in an earlier statement). His testimony was short yet enlightening, revealing the patterns, the bias in the reports which are drafted during the campaigns against the indigenous families, endemic throughout the region.
Martín Iturburu Moneff is the attorney for Benetton, or the CTSA. Doubt is his domain, always maintaining that the CTSA, which everyone knows belongs to the Italian corporation, is an Argentinean entity and that, because it is a joint-stock company, nobody knows who the owners are. In order to validate his position, not without irony, he displayed a blue and white lapel button throughout the hearings. Sympathizers or not, all Benetton representatives wore the same insignia, in spite of the national holidays having ended the previous day.
His statements ended confirming a change in the Benetton strategy. Where before he claimed secrecy and violence on the part of the Curiñanco-Nahuelquir family, now there was only apparent "negligence." His long winded speech began by saying: "there is a legal and a civilian question here, the latter being the one we are concerned with. We are separate from the criminal action; I want this to be absolutely clear." With these words, he was in fact retracing his steps; the criminal charges of usurpation were based on the documents that he submitted and now, in the light of the testimonies, they had become untenable.
He explained that when you buy a sweater -coincidence?- first you find out what it's made out of, who made it and how much it costs, then he went on to say that in this case it was the same thing; that the Curiñancos could have made inquiries to find out whether it was communal land or not. Although he recognized that they had gone to make a police inquiry before entering the estate, he reasoned "they had not presented it to the IAC because they knew that they were going to be told it wasn't." According to him, there was a certain amount of "negligence", which had elicited "a harmful effect, damaging the interests of the CTSA." Soon he elaborated in the problem of property lines and the question of ownership which we will examine in the second part. He concluded the Curiñancos "were aware it was private property."
Next, the statement of the prosecution, a representative of the State, would determine which crime was committed and formulate the charges. But this time, without warning, the prosecutor became an impassioned defender of the Mapuche family. He asserted that in order for a crime like usurpation to be qualified, there must be at least one of five conditions: secrecy, deceit, breach of trust, violence or threat. Point by point, he demonstrated that on the basis of the testimonies and the proof presented, none of these characteristics could be attributed to the Mapuche family's conduct, therefore, the matter could not proceed for lack of evidence.
The public received his intervention with applause, which was multiplied when the judge indicated that if the prosecution did not press charges, he would not have an option but to rule in favor of the family. He only needed to determine the civil question, about who owned the land.
The tension that prevailed in the hall and the apprehension reflected in many faces dissipated with a measure of tenderness. "My client -Dr Hualpa, one of the defenders, announced- wants to go bathroom. I believe that he can go because he is no longer accused." The quip brought smiles to the audience, shouts of Marici Weu! with fists up high, and an outburst of hugs and tears contained throughout more than a year of struggle.
The judge had to call a recess before ruling. Outside, to the rhythm of the kultrum and a beautiful and deep song by Doña Celinda, the old women attending the hearing began to dance with half-steps, holding hands and responding to the shouts and sounds of the men who played the wind instruments of the Mapuche culture. On their faces, there were smiles and many tears; it was a dance of joy, dignity and struggle.
Facing their country and the world, together they had defeated a typical procedure in the region; the eviction of destitute families for no reason. Then went on to question the legal matter of whether or not they own the land, a routine of conquest and plunder that repeats itself since the "Conquest of the Desert," which wrote many a page of blood and resistance in this region.
After ten years of struggle, less of a month ago, Judge Collabelli, who stood against this action, was dismissed because of such procedures. In his rulings, the Mapuche families were always evicted, denying them the right to defend themselves and condemning them to dispossession before being sentenced.
Benetton, with their accusation, took shelter in that procedure in order to evict the Curiñanco family, and even the spokesman for the company, Federico Sartor, had boasted, while replying to some of my articles two months before the ruling, that the sentence was already given.
Yesterday, the Mapuche finally put that practice on the table, making it also clear that the Constitution, which says that the native people must retain ample and sufficient land for their development, has been, until now, nothing but wet paper.
Perhaps we have witnessed the beginning of the end of many things, among them the Benetton-Collabelli doctrine, which says that might is always right.
Translated by Miguel Alvarado
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