Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Colombia (Ratification: 1991)

Other comments on C169

Observation

Direct Request

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The Committee notes the Government’s reply of 12 November 2010 pertaining to the observations of the Union of Workers of the National Mining Enterprise “Minercol Ltda.” (SINTRAMINERCOL) dated 28 August 2010. The Committee also notes the Government’s replies, received at the Office on 7 and 22 October and 2 November 2011, to the observations of 30 August 2010 and 30 August 2011 by the Single Confederation of Workers (CUT) and the Confederation of Workers of Colombia (CTC).

The Committee also notes the communications of 31 August 2011 from SINTRAMINERCOL.

It also takes note of the communication of 31 August 2011 from the National Employers Association of Colombia (ANDI). The Committee likewise notes the observations of 19 October 2011 from the International Organisation of Employers (IOE). The Committee requests the Government to send its comments thereon.

The Committee also notes the report of the High-level Tripartite Mission that visited the country at the invitation of the Government in February 2011 and which refers, inter alia, to issues related to measures to combat violence.

In view of the abundant and detailed recent information supplied by the Government, particularly in the communications received on 22 October and 2 November, the Committee proposes to examine all the issues raised at its next session. At the present session, the Committee will examine only certain issues.

Articles 2 and 3 of the Convention. Coordinated and systematic policy to protect the rights of indigenous peoples. In its previous comments the Committee took note of the climate of violence in the country affecting among others the indigenous and Afro-Colombian communities. It notes that the observations submitted by the abovementioned organizations give an account of specific situations of violence, harassment and threats to indigenous peoples. The CUT and the CTC further assert that access to the legal system is difficult for indigenous peoples and that the response of state bodies to the complaints and offences committed against indigenous peoples is inadequate.

The Committee notes the information by the Government concerning the measures that it has been adopting to combat violence and, in particular, violence affecting the indigenous peoples. The Government also provides information on: (1) the preparation of national development plans; (2) the design and implementation of the Democratic Security Policy, in force since 2002; (3) the preparation of the National Action Plan for Human Rights; (4) the creation of the Committee on Regulation and Evaluation of Risks for Ethnic Groups, in which indigenous and Afro-Colombian representatives participate; and (5) the establishment of a programme for the protection of the fundamental rights of displaced indigenous women. The Government also refers to the preparation of a guarantee programme and to safeguard plans for 34 peoples in particular, which, according to the Constitutional Court (Resolution No. 4 of the Constitutional Court, noted by the Committee in its previous comments) are at serious risk of disappearing, both physically and culturally. The Government states that “a set of remedial and urgent actions, measures and instruments have been proposed to respond to the gravity of a situation in which the indigenous peoples of Colombia are facing impairment and massive violations of multiple rights and are in one way or another affected acutely by armed conflict and forced displacement”.

The Committee also notes that the Government provides detailed information on the investigations conducted by the Office of the Public Prosecutor with respect to the concrete cases referred to by the CUT and the CTC in their communications and, in particular, that an investigation procedure has been devised for instances of violations of the rights of indigenous peoples, that measures were adopted to combat impunity in such cases which include the possibility of reopening closed cases. The Committee also notes the information provided concerning the appointment of dedicated human rights prosecutors. The Government provides detailed information on the number of cases referred to the human rights unit of the Office of the Public Prosecutor. The Committee notes with interest that fact-finding commissions to investigate homicides in various communities have been appointed, which have enabled the offenders to be identified and has moved investigation forward; and that care has been provided for 40,256 victims, which include numerous members of the indigenous peoples.

The Committee welcomes the adoption of the Act on victims and the restitution of lands (Act No. 1448 of 10 June 2011), the objective of which is to compensate, restore and indemnify victims of the armed conflict in Colombia. The Committee also notes the Government’s indication that a Decree is being drafted to implement the Act, in consultation with indigenous peoples. The Committee hopes that the Decree will be in conformity with the Convention. It asks the Government to provide information in this regard.

While acknowledging the efforts made by the Government to improve the situation of violence in general and in particular against indigenous peoples, including their leaders, the Committee notes with concern that, according to the observations submitted by the abovementioned organizations and in view of the measures that the Government has had to take, the situation continues to be serious. The Committee accordingly requests the Government to continue its efforts in a coordinated and systematic manner, to ensure protection of the physical, social, cultural, economic and political integrity of the indigenous and Afro-Colombian communities and their members. The Committee further requests the Government to continue to take the necessary measures to ensure that the acts of violence reported are investigated.

Article 6. Legislation on consultations. In its observation of 2009 the Committee referred to the legislation in force concerning the right of consultation, which is not in line with the Convention in terms both of its content and of the adoption process. The Committee previously urged the Government to ensure the participation and consultation of indigenous peoples in the preparation of the provisions for regulating the consultation process. The Committee notes the indication in the observations from the ANDI that mechanisms, programmes and activities promoted by the State have been set up to ensure effective protection of the rights of indigenous peoples at national, departmental and municipal levels. ANDI adds that the right of prior consultation established in the National Constitution is a prerogative of the indigenous peoples which cannot affect the general interests of the nation or hamper sustainable social and economic development.

The Committee notes according to the CUT and the CTC, the Presidential Directive No. 001 of 2010 concerning consultation, the procedure was not the subject of consultation with the indigenous peoples. In this respect, the Committee notes the Government’s indication that a working group has been set up within the Ministry of the Interior on the subject of prior consultation and is drawing up preliminary draft legislation to regulate the fundamental right to prior consultation, which itself has to be submitted for consultation with the indigenous peoples. The Government also indicates that the Presidential Directive contains instructions for the executive authority concerning the consultation procedure. The Government adds that the existing legal framework establishes the obligation of prior consultation and points out that recent Decree No. 2893 of 2011 provides that the Directorate for Indigenous, Roma and Minority Affairs shall have the function of coordinating and implementing the prior consultation processes relating to the presentation of legislative and administrative initiatives at national level. The Directorate has already adopted measures with a view to undertaking consultations on various items of draft legislation, namely: the Bill on levies; the Bill on the regional environmental council; the Bill on rural development; the Legislative Decree on victims and land restitution; the decree on access to genetic resources and related traditional knowledge; and the Bill on territorial entities and levies. The Government also indicates that the 2010–14 Development Plan provides for institutionalization of the prior consultation mechanism.

The Committee notes in particular that the Government, with the participation of the Vice-President of the country, is undertaking consultation on different issues with the indigenous communities and has requested the Office to participate as an observer in these consultations.

The Committee requests the Government to provide information in its next report on the following matters:

(i) the progress made on the preliminary draft of the bill concerning the right to consultation which is due to be submitted to the indigenous peoples and the state body which is responsible for that process;
(ii) developments in the processes implemented by the Directorate for Indigenous, Roma and Minority Affairs for the consultation of the indigenous peoples in relation to the various pieces of draft legislation mentioned above; and
(iii) the measures taken with a view to the institutionalization of the mechanism for prior consultation and the participation of the indigenous peoples in that process.

Article 15. Consultation regarding exploration and exploitation projects in indigenous territories. In its previous comments, the Committee noted the existence of a number of disputes between the indigenous communities, the State and private companies linked to projects for the exploration and exploitation of natural resources in which it is alleged that adequate consultation of the indigenous peoples affected by those projects have not been undertaken. The Committee notes with interest recent Rulings T-769 of 2009 and T-129 of 2011 in which the Constitutional Court referred to the need to undertake consultations with the indigenous peoples concerning projects which may directly affect their rights and established the requirements to be fulfilled by such consultations. In this respect, taking account of the decisions of the Constitutional Court, the Committee requests the Government to take the necessary measures to ensure that, when a project for the exploration and exploitation of natural resources in territories traditionally occupied by indigenous peoples is planned, consultations are held with the indigenous peoples concerned as required by the Convention. On this particular issue, the Committee draws the attention of the Government and the social partners to its general observation of 2010.

Representativeness. The Committee notes the references in the observations from the CGT, CUT, CTC and SINTRAMINERCOL to problems of representativeness concerning some of the leaders representing the Afro-Colombian communities. The Committee notes that the Government’s report does not contain any specific information on this subject. The Committee recalls that the principle of representativeness is a key component in the obligation of consultation. Even though it may be difficult in many cases to determine who represents a community in particular, the Committee considers that if there is no adequate consultation process with the indigenous or tribal institutions or organizations with are truly representative of the communities affected, the consultations held would not comply with the requirements of the Convention. The Committee therefore requests the Government to indicate whether there are reasonable and objective criteria established at national level, in consultation with the indigenous peoples concerned, for determining the representativeness of the leaders of the indigenous peoples and what measures are taken in the event of any dispute to identify those who actually represent the communities.

[The Government is asked to reply in detail to the present comments in 2012.]