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

Lands

Article 14 of the Convention. Land registry. In its previous comments the Committee noted the legislative and administrative measures concerning the legalization and allocation of lands. It asked for information on all the lands occupied by black and indigenous communities which have not yet been demarcated or in respect of which ownership has not been established, and on the programmes or projects, either planned or already under way, designed to undertake those tasks. The Government indicates that it does not have precise statistical information regarding the lands occupied by indigenous and black communities which have not yet been demarcated or in respect of which ownership has not been established, and it does not have a map which indicates demarcated properties or those in respect of which title has been established. The Government provides some statistical information on land allocations by district and surface area undertaken in 2006. According to the communication from the Ecuadorian Confederation of Free Trade Unions (CEOSL), in view of the fact that there is no reliable registration information, partly because of the existence of false title deeds, it is necessary to establish a land registry to determine clearly which lands have been legalized, which lands are in the process of legalization and which are the property of the State. The Committee considers that such information is relevant to ensuring compliance with Article 14(2) of the Convention, which states that governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. The Committee requests the Government to supply information on whether consideration is being given to establishing a land registry system or on any steps which it is contemplating in order to have accurate and reliable information enabling it to determine the lands traditionally occupied by the peoples concerned.

Lands, and bodies responsible for the establishment of ownership. The Committee notes the Government’s statement that it is the National Institute of Agrarian Development (INDA) which administers the procedure for transfers of private ownership, incorporation of small holdings, allocation and consequent legalization of lands for the development of the Montubio, indigenous and
Afro–Ecuadorian peoples, and establishment of ownership. The Committee notes that, according to the communication from the CEOSL, a total of 1,295,759 hectares in the Amazon region were identified for legalization but that INDA, the body with competence for that task, does not have the necessary resources. The Committee requests the Government to take the necessary steps to ensure that these bodies can guarantee the application of the rights referred to by the Convention and to supply information in this respect.

Legislative and administrative measures with regard to lands and consultation. In its previous comments the Committee asked the Government to provide information on the mechanisms adopted to implement the process of prior consultation laid down by Article 6 of the Convention in relation to the legislative and administrative measures which could affect the land rights of the peoples covered by the Convention. The Government refers to its statement indicating that the Secretariat of Peoples, Social Movements and Civic Participation will safeguard these rights. However, the Committee’s comments referred to specific legislative and administrative measures which regulated the land rights of the peoples concerned, for example administrative decisions establishing the parameters for determining the ancestral ownership of indigenous lands. The Committee requests the Government to consult the peoples concerned with regard to these measures pursuant to Article 6 of the Convention and to keep it informed regarding the consultations undertaken in this respect. It also requests the Government to indicate the criteria used to define traditional occupation and whether the indigenous peoples were consulted with regard to these criteria.

Article 18. Protected areas and protection against intrusions. The Committee further notes from the communications sent by the CEOSL that various problems exist as regards the effective observance of indigenous rights in protected areas. In the Tagaeri–Taromerani protected area, for example management is reportedly ineffective and pressure is exerted by logging companies involved in illegal forest operations, companies involved in tourism and oil companies. Reference was also made to violent clashes resulting from illegal incursions into the protected area. The Committee requests the Government to take measures, pursuant to Article 18 of the Convention, to establish appropriate penalties for any unauthorized intrusion onto the lands of the peoples concerned or any unlawful use thereof by unauthorized persons, to take steps to prevent such infringements and to provide information in this respect. In particular, the Committee requests the Government to provide information on the steps taken to prevent such infringements in the
Tagaeri–Taromerani protected area and the other protected areas referred to in the communication.

Article 15. Natural resources. Legislation. The Committee notes that article 57, paragraphs 6 and 7, of the new Constitution establish the right of indigenous peoples to participate in the use, benefit, administration and conservation of renewable natural resources located on their lands; the right to prior, free and informed consultation, within a reasonable period of time, with regard to plans and programmes for the exploration, exploitation and marketing of non-renewable resources located on their lands and which could have an environmental or cultural impact on them; the right to share in the profits yielded by these projects and to receive compensation for any social, cultural or environmental damage caused by them. The consultations to be carried out by the competent authorities are mandatory and must be undertaken in a timely fashion. The Committee requests the Government to provide information on legislative or administrative measures which give effect to article 57 of the Constitution and to provide examples of its application in practice. Moreover, the Committee requests the Government to give examples of cases in which indigenous peoples’ right to share in profits, as established by the Convention and by article 57 of the new Constitution, has been recognized as a result of consultations.

Natural resources. Pending cases. In its previous comments the Committee referred to various cases of non-existent or inadequate application of the consultation and participation processes laid down by the Convention in relation to natural resources, with particular reference to the Cubayeno–Imuya area, the Cofane, Siona and Secoya peoples, and Block 23. The Committee requests the Government to supply information on the steps taken by the Government, in consultation with the peoples concerned, to ensure the full application of the provisions of the Convention in the abovementioned cases.

Articles 8 to 10. Indigenous justice system. The Committee notes the Government’s statement in its report that on 8 August 2008 public prosecutors’ offices on indigenous issues have been created, comprised of indigenous officials or professionals trained to deal with different indigenous peoples. According to the report provided by the CEOSL, most officials working in the state justice system do not recognize the validity of indigenous legal systems or do not have any interest in knowing about those systems and do not apply the standards of the Convention. The Committee requests the Government to intensify its efforts to ensure a better application of Articles 8 to 10 of the Convention and to keep it informed in this respect.

Article 20. Employment. In its previous comments the Committee referred to a working group on indigenous peoples within the Ministry of Labour. According to the alternative report submitted by the CEOSL, the Ministry of Labour is drafting a plan of action entitled “Labour integration and decent employment for indigenous and Afro–Ecuadorian peoples”, with five main components relating to work. The report states that no information is available regarding the implementation and progress of the plan. The Committee requests the Government to provide information in this respect.

Article 32. Cross-border contact. The Government states that progress is being made to facilitate contact with the indigenous peoples living at the borders of Ecuador and Peru. The Committee notes that the CEOSL refers to serious problems on the border with Colombia and requests the Government to keep it informed in this respect.