Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the detailed report supplied by the Government of Ecuador and the comments sent by the Ecuadorian Confederation of Free Trade Unions (CEOSL), including an alternative report on the application of the Convention in Ecuador. The alternative report analyses the situation of the indigenous peoples from the ratification of the Convention in 1999 until July 2006 and was drawn up by the “Observatory for the Monitoring of Convention No. 169”, with the support and participation of various civil society groups, indigenous organizations, academic institutions, etc. The alternative report refers to problems regarding the criteria used for censuses, a greater incidence of poverty among indigenous peoples compared with non-indigenous peoples, a lack of consultation and participation particularly with regard to natural resources, and the violation of territorial rights. As regards the greater incidence of poverty, the alternative report indicates that, according to the sixth Population and Housing Census, nine out of ten persons self-defined as indigenous and seven out of ten persons self-defined as black are poor, whereas slightly less than five out of ten persons self-defined as white are poor. The Committee notes that the Government did not make any comments on this report but that, according to the Secretariat of Peoples, Social Movements and Civic Participation in official letter No. 0767-DM-SPPC-08, the alternative report could be very useful for drawing up the Government’s report on the application of the Convention.

Legislation and changes. The Committee notes the Government’s indications in various paragraphs of its report that information is provisional since, at the time the report was drafted, the adoption of the new Constitution was pending. The Committee notes that the Constitution of Ecuador came into force in October 2008 at the time of its publication in the Official Register (RO). The Government states repeatedly that changes will be made in law and in practice on the basis of the new Constitution, and that the new Constitution represents progress with regard to the indigenous peoples. The Committee notes with interest that the new Constitution establishes rights which are laid down by the Convention, including rights regarding lands, consultation, participation, cross-border cooperation, and protection and preservation of the environment. In order to have a fuller idea of the changes arising from the Constitution, the Committee requires more information on the changes made in law and in practice on the basis of the new Constitution. The Committee therefore requests the Government to supply information on the main changes in law and in practice relating to the Convention, resulting from the adoption of the 2008 Constitution.

Articles 2 and 33 of the Convention. Coordinated and systematic action. Agencies or other appropriate mechanisms. The Committee notes that, by means of Decree No. 133 of 13 February 2007, published in RO No. 35 of 7 March 2007, the Secretariat of Peoples, Social Movements and Civic Participation was established, which, with the support of the Ministry of Labour, will safeguard and coordinate the rights of indigenous peoples and communities. The Government states that in order to ensure coordinated and systematic action via the abovementioned Secretariat, three institutions were set up: the Council for the Development of Afro–Ecuadorian Peoples (CODAE), the Council for the Development of Indigenous Peoples and Nationalities (CODENPE) and the Council for the Development of the Montubio People of the Ecuadorian Coast and Sub-tropical Zones of the Coastal Region (CODEPMOC). The “Project for the development of indigenous and black peoples of Ecuador (PRODEPINE)”, to which the Committee referred in previous comments, was cancelled and taken over by CODENPE. In addition, CODENPE became an autonomous entity on the basis of the Organic Act concerning the institutions of the indigenous peoples of Ecuador (RO No. 175 of 21 September 2007). The Committee requests the Government to institutionalize and reinforce the bodies responsible for indigenous policy and also indigenous participation in those bodies, and to provide information on the measures taken in this regard, as well as information on the following:

(i)    the activities of those bodies; and

(ii)   the form that indigenous participation in those bodies takes, with reference to Articles 2 and 33 of the Convention.

Articles 6, 7 and 15. Consultation, oil activities and monitoring of the implementation of the recommendations made in document GB.282/14/2. The Government stated recently that it would be in a position in its next report to provide information on mechanisms for consultation with the indigenous and Afro–Ecuadorian peoples, once the Secretariat referred to above had the relevant data and results and also in relation to the 2008 Constitution. The Committee also notes the Government’s statement that as part of the procedures undertaken at the Ministry of Mining and Petroleum for obtaining an oil concession, the indigenous communities who would be affected by such a concession are consulted. The Committee notes that, according to the alternative report sent by the CEOSL, serious problems exist in relation to consultation, participation and oil exploitation, and particular emphasis is placed on the serious problems which the Sarayacu community has been facing since 1996 until the present day. Reference is also made to other situations in which serious shortcomings are alleged with regard to consultation, failure to comply with rulings, problems of representation, violence and other problems, with particular reference to “Block 31” in the province of Orellana and “Blocks 18 and 24” in Ecuadorian Amazonia. With regard to Block 24, the Committee notes that, in 2001, the Governing Body adopted a report concerning a representation made by the CEOSL (see GB.282/14/2). In its previous comments the Committee asked the Government to provide information on the application of the recommendations of the Governing Body contained in paragraph 45 of its report. The Committee notes the Government’s statement that it is the new Secretariat of Peoples, Social Movements and Civic Participation which will be responsible for follow-up action on this matter. The Committee expresses its concern at the time which has elapsed and at the lack of information concerning action taken to comply with the recommendations of the Governing Body. The Committee requests the Government to intensify its efforts to resolve the disputes referred to above by means of consultation and participation and requests it to provide information on the cases referred to, particularly regarding action taken to comply with the recommendations of the Governing Body in the case of Block 24.

With reference to its general observation of 2008, the Committee requests the Government to supply information on the measures taken with regard to the following:

(i)    including the requirement of prior consultation in legislation regarding the exploration and exploitation of natural resources;

(ii)   engaging in systematic consultation on the legislative and administrative measures referred to in Article 6 of the Convention; and

(iii) establishing effective consultation mechanisms that take into account the vision of governments and indigenous and tribal peoples concerning the procedures to be followed.

Part VIII of the report form. Noting: (1) the imminent changes to be made on the basis of the new Constitution; (2) the Government’s stated intention to make progress as regards consultation and participation; (3) the alternative report sent by the CEOSL; and (4) the fact that the Secretariat of Peoples, Social Movements and Civic Participation considers that the alternative report is extremely useful, the Committee considers that it would be extremely beneficial for the Government to consult the principal indigenous organizations with a view to the preparation of its next report, as this would enable it to conduct an analysis, with the participation of the peoples concerned, of the situation regarding the application of the Convention and the corresponding proposals for improving its application. The Committee requests the Government to supply information in this respect.

The Committee is raising other points in a request addressed directly to the Government.