Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Honduras (Ratification: 1995)

Other comments on C169

Observation

Direct Request

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The Committee notes the observations made by the Single Confederation of Workers of Honduras (CUTH), received on 8 February 2016, and the Government’s reply to these observations, received on 15 June 2016. The Committee also notes the observations of the Honduran National Business Council (COHEP), supported by the International Organisation of Employers (IOE), as well as the observations of the International Trade Union Confederation (ITUC), both received on 31 August 2016. Finally, the Committee notes the joint observations of ITUC, CUTH and the Trade Union Confederation of Workers of the Americas (CSA), received on 7 September 2016.

Articles 2 and 33 of the Convention. Coordinated and systematic action. In its previous comments, the Committee requested the Government to provide information on: the activities undertaken by the Department of Indigenous and Afro-Honduran Peoples (DINAFROH); the implementation of the Strategic Plan for the Comprehensive Development and Identity of Indigenous and Afro-Honduran Peoples (2011–22); and on the progress made with the preliminary draft Bill for the comprehensive development of indigenous and Afro-Honduran peoples in Honduras. The Committee welcomes the adoption of Executive Decree No. PCM 027-2016 approving the public policy against racism and racial discrimination for the comprehensive development of indigenous and Afro Honduran peoples (P-PIAH). The Government indicates that the general objective of this policy is the exercise of the human rights of indigenous and Afro-Honduran peoples (PIAHs), maintaining their identity and diversity, promoting co responsibility through forums for participation and the exercise of social, economic, political, cultural and environmental rights. The Government considers that this policy will contribute to improving the income and living conditions of the PIAHs, through production initiatives and access to employment, with the added value of their culture. The Committee notes the indication in the introduction to the Executive Decree that the formulation of the P-PIAH benefited from the participation of nine PIAHs through consultation mechanisms for decision making during the formulation, implementation and evaluation stages. The Committee further notes that, in order to achieve the objective of the P-PIAH, six sets of rights have been defined: social and political participation; the right to education; the right to health; rights to ancestral heritage resources; the right to land, territory and natural resources; and customary rights. For each of these sets of rights, the policy defines types of action and strategic activities, and also provides for a system of monitoring and evaluation. The Committee requests the Government to provide detailed information on the measures adopted with a view to the implementation of the six series of rights defined in the P-PIAH, and the results achieved. The Committee hopes that adequate resources will be provided to the authorities responsible for the implementation of the P-PIAH so that they can discharge their activities effectively. The Committee also requests the Government to continue providing information on the activities carried out by the Department of Indigenous and Afro-Honduran Peoples (DINAFROH).

Articles 8 and 9. Customary laws. The Committee notes the Government’s indication that the Office of the Special Prosecutor for Ethnic Groups and the Cultural Heritage has organized ten days of training for its prosecutors so that they take into account the customary laws of indigenous peoples in their decisions. The Government adds that it requested information from the Supreme Court of Justice on court rulings in which the customs and customary laws of indigenous and Afro-Honduran peoples have been taken into consideration. The Committee requests the Government to provide information on this subject in its next report.

Article 14. Land. With reference to its previous comments, the Committee notes the information provided by the Government concerning the clarification processes relating to the cases of Auka (territorial council of Wamakklinsinasta), the Garífuna communities (Punta Piedra and Triunfo de la Cruz) and the Tolupa tribes (Montãna de la Flor). With reference to the land title granted between 2015 and 2016, the Committee notes that the land surface for which title was granted was 94,643 hectares, benefiting the Lenca and Miskito communities. The Committee notes the reference by the ITUC, CSA and CUTH in their joint observations to the difficulties confronting the Garífuna community in relation to the enjoyment and effective use of their ancestral lands. In this regard, the Committee notes that, in her final statement concerning her mission to Honduras, the United Nations Special Rapporteur on the rights of indigenous peoples indicated that a fundamental problem which indigenous peoples confront is the lack of full recognition, protection and enjoyment of their rights to their ancestral lands, territories and natural resources, even in cases in which indigenous peoples hold title to the land. The Committee trusts that the Government will continue taking measures to ensure that progress is made in the processes of clarifying and granting land title and requests it to provide detailed information on this subject, with an indication of the surface area of the lands to which indigenous peoples have lodged claims and the surface covered by the titles granted.

Article 15. Natural resources. With reference to its previous comments, the Committee notes the Government’s indication that consultations were held with the peoples concerned in relation to the Patuca III hydroelectric project (Piedras Amarillas), and that it has provided the reports of the information workshops organized. In this regard, the Committee also notes the indication by the COHEP that the participation of the indigenous communities in the benefits accruing from the exploitation of natural resources pertaining to their lands is ensured through an agreement between the parties setting out the benefits to be received by the communities when the project is implemented. The agreement takes the form of a document signed by the representatives of the communities, witnesses and the Secretariat of State in the offices of the PIAH. The Committee requests the Government to continue providing information on the procedures established with a view to the consultation of indigenous and Afro-Honduran peoples prior to undertaking or authorizing any programme for the exploration or exploitation of resources pertaining to their lands, the difficulties encountered and complaints made. The Committee recalls in this regard that consultations must be full, formal and consist of genuine dialogue between the Government and indigenous and tribal peoples, characterized by communication and understanding. The Committee once again requests the Government to provide examples of the manner in which the participation of indigenous communities is ensured in the benefits accruing from activities for the exploitation of the natural resources pertaining to their lands.

Mining. With reference to the application of the General Mining Act, which entered into force in April 2013, the Committee notes that both the Government and COHEP indicate that exploration permits were only granted as from 2016. None of these are in areas affecting the settlements of PIAHs. COHEP indicates that up to now no mining concessions have been granted. COHEP and the National Association of Metal Mining of Honduras (ANAMIMH) consider that the subject of prior consultation is fully covered by the General Mining Act. In this regard, the Government indicates that, in accordance with section 67 of the General Mining Act, prior to a decision being taken to grant an exploitation permit, the mining authority shall call upon the municipal authorities and the population to engage in a citizens’ consultation within a period of no more than six days. The decision adopted during the consultation is binding for the granting of the exploitation concession. Furthermore, section 50 of the Act provides that the granting of mining concessions may not be prejudicial to the guarantee of private property and the property belonging to the municipal authorities, as set out in the Constitution of the Republic and further developed in the Labour Code and international treaties on indigenous and Afro-Honduran peoples, and particularly in accordance with Convention No. 169. The Committee notes the ITUC’s indication that large-scale mining projects have also become a considerable threat to the full exercise of the rights of indigenous peoples. The ITUC considers that the lack of guarantees in the provisions of the General Mining Act concerning prior consultation with indigenous peoples and free and informed prior consent is in violation of the indigenous rights set out in the Convention.

The Committee recalls that the Convention establishes the requirement for specific procedures for the consultation of indigenous peoples in cases where decisions may affect their interests. Recalling the importance of this principle, the Committee requests the Government to provide examples of the citizens’ consultations held within the framework of the procedures set out in the General Mining Act prior to adopting a decision to grant an exploration or exploitation concession, with an indication of the manner in which the right to consultation was respected in cases in which indigenous peoples might be affected.

Articles 24 and 25. Social security and health. The Committee notes the detailed information provided by the Government on the action taken within the context of the National Programme of Care for Ethnic Groups (PRONAE), which determines the policy and general technical approach to the provision of health care for indigenous and Afro-Honduran populations. It also notes the adoption in 2015 of the Framework Act on the social protection system, the objective of which is to ensure universal coverage for all citizens, and free access to health care for the whole of the population, as well as social transfers, with emphasis on the poorest and most vulnerable.