Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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 observations of the National Employers Association of Colombia (ANDI), received on 1 September 2015, the Single Confederation of Workers of Colombia (CUT), received on 2 September 2015, the General Confederation of Labour (CGT), received on 2 September 2015, and the Confederation of Workers of Colombia (CTC), received on 29 August and 4 September 2015, and the Government’s reply to these observations.

Article 4 of the Convention. Human rights. Ethnic protection plans. The Government includes in its report detailed information on the ethnic protection plans for 32 peoples affected by internal armed conflict, adopted to give effect to ruling No. 004 of the Constitutional Court of 2009. The Committee notes that the plans have been submitted for pre-consultation and dialogue with the communities concerned. The CTC and the CUT indicate that indigenous communities are calling for the adoption of protection measures against threats to their life and culture and are expressing concern at the delay in the implementation of the ethnic protection plans. According to the indications of the National Indigenous Organization of Colombia, forwarded by the CTC, the Emberá people in the department of Chocó are still being affected by relocations. The CTC adds that indigenous peoples located in the Pacific corridor are in a situation of extreme vulnerability. In its reply, the Government indicates that the Department of Indigenous, Rom and Minority Affairs of the Ministry of the Interior is taking action to move forward effectively and efficiently with the protection of indigenous peoples. The Committee requests the Government to continue providing information on the implementation of the ethnic protection plans and their impact, particularly for the protection of the most vulnerable indigenous peoples.

Protection of the fundamental rights and restitution of the collective lands of indigenous and Afro-Colombian communities. The Committee notes the updated information provided by the Government on the measures adopted in accordance with ruling T-025 of 2004 of the Constitutional Court for the restitution of the ancestral lands of the Afro-Colombian communities of Curvaradó and Jiguamiandó. The Committee notes the censuses conducted to identify members of the communities affected and the studies that are being undertaken to assess their socio-economic situation. The Committee also notes with interest the two rulings attached to the Government’s report ordering the restitution of lands: the ruling of 23 September 2014 of the Civil Chamber Specialized in Land Restitution of the High Court of Antioquia, ordering the restitution of 56,405 hectares to the Emberá Katío community in the Andágueda reservation (resguardo), and the ruling of 1 July 2015 of the Civil Court of First Instance of the Specialized Land Restitution Circuit in Popayán ordering the restitution of 71,149 hectares located in the municipality of Timbiquí, department of Cauca, to the Renacer Negro Community Council. The Government adds the Comprehensive Victim Care and Compensation Unit has applied for precautionary measures to protect 16 lands belonging to indigenous and Afro-Colombian communities. The CUT and the CTC indicate that disputes are continuing concerning the restitution of lands to the Nasa communities in the north of Cauca. In its reply, the Government indicates that, in accordance with the agreements for the reparation of indigenous communities in the north of Cauca, lands were acquired for the Canoas, Corinto, Guadualito, Jambaló, Hellas, La Cilia, La Concepción, Las Delicias and Munchique–Los Tigres reservations. The Committee also notes that in February 2015 the Minister of Agriculture and Rural Development presented to the representatives of the indigenous communities of the north of Cauca a proposed project for the construction and improvement of rural housing as compensation for the delay in giving effect to the reparation measures. The Committee requests the Government to continue providing information on progress in the proceedings for the restitution of collective lands to indigenous and Afro-Colombian communities. Please continue providing information on the impact of the measures adopted further to the applications for the restitution of the lands of the Nasa people, and the activities undertaken to protect their physical and cultural integrity.

Article 5. Protection of Raizal small-scale fishers. The Government indicates that section 131 of the National Development Plan 2014–18 (Act No. 1753 of 2015) provides for the preparation of a Statute for the Raizal People of the Archipelago of San Andrés, Providencia and Santa Catalina in the context of the application of the Convention and the designation of the UNESCO Seaflower Biosphere Reserve. The Government adds that a Support Plan for Small-scale Fishing has been developed with the participation of representatives of fishers’ associations of San Andrés. In relation to education, the Government has concluded a contract with the Living in English Corporation for the drawing up of an ethnic educational project intended for Raizal communities which envisages the participation of the representative organizations of the communities in its implementation. The ANDI emphasizes that the Government has been implementing works in the fields of education, infrastructure, transport, provision of public services and the environment in the islands of San Andrés and Providencia, which were designed together with the Raizal communities. The CGT indicates that the consultations held have focused on the Raizal communities of San Andrés and that the participation of the Raizal Peoples of Providencia and Santa Catalina needs to be strengthened. The Committee requests the Government to continue providing information on the impact of the measures adopted to ensure adequate conditions of life and work for the Raizal peoples.

Articles 6, 7 and 15. Consultation and participation. Natural resources. The Committee notes Conpes Document No. 3762, which was approved on 20 August 2013 by the National Economic and Social Policy Council, and which is referred to by the CGT in its observations. Conpes Document No. 3762 sets out the main features of the policy for the development of projects of national and strategic interest, including participation and dialogue with communities prior to the granting of environmental licences for projects of national and strategic interest. The Government maintains that Conpes Document No. 3762 seeks to improve the efficiency and effectiveness of the exercise of the fundamental right to prior consultation. The Committee requests the Government to provide information on the manner in which the consultation and participation of indigenous peoples, as required by the Convention, is ensured in the projects that affect them directly which are presented and supervised by the National Economic and Social Policy Council.

Article 15. Consultation prior to the development of projects. The Committee notes with interest the adoption of Decree No. 2613, of 20 November 2013, issuing the Inter-institutional Coordination Protocol for Prior Consultation. The objective of the Protocol is to facilitate coordination between the competent public bodies and to ensure the circulation of information with a view to certifying the presence of ethnic communities in order to hold prior consultations. The Department of Prior Consultation of the Ministry of the Interior will have sole competence for certifying the presence of ethnic communities. The Colombian Rural Development Institute (INCODER) is responsible for providing the Department of Prior Consultation with information on legally constituted reservations (resguardos) and the process of constituting indigenous communities, and on the collective titles of black communities. The Protocol also provides for the representatives of indigenous communities to be members of the follow-up committee to verify the application of the undertakings made during the consultations. The Committee also notes with interest the adoption of Presidential Directive No. 10 of 7 November 2013, containing the Guide on the holding of prior consultations with ethnic communities. In accordance with Presidential Directive No. 10, the process of consultation includes five stages: (1) certification of the presence of communities based on the criteria of the Convention; (2) coordination and preparation of the consultation, with the participation of the communities; (3) pre-consultation; (4) prior consultation; and (5) follow-up of agreements. During the consultation process, the Department of Prior Consultation receives support from the Office of the Public Prosecutor and the Ombudsman. The Guide also provides that the purpose of consultation is the holding of dialogue between the State, the entity executing the project and ethnic communities on the impact on communities of projects for the exploitation of resources or infrastructure projects with a view to the formulation of measures to prevent, remedy, mitigate and compensate any negative effects which may be caused by a project. The CGT indicates that only communities entered into the database of the Ministry of the Interior are considered for the purpose of consultation. The Government emphasizes that, not only are these communities consulted, but they are also considered as other sources in ascertaining whether or not ethic communities are present in the project area. The Government indicates that, during the period between 2003 and 2015, a total of 4,891 consultation processes with ethnic communities were conducted, of which 4,198 resulted in agreements. The ANDI indicates that various enterprises and civil society sectors are collaborating through the Regional Centre of the Global Pact Network for the dissemination of the Convention and the establishment of dialogue platforms between the Government, enterprises and indigenous peoples. The CGT considers that the consultation process needs to be adapted to the situation of the community that is to be consulted and emphasizes the importance of ensuring that consultation is undertaken prior to the adoption of decisions that may affect indigenous peoples. The Committee requests the Government to continue to provide information on the functioning of the Inter-institutional Coordination Protocol for Prior Consultation and to provide examples so that it can examine the manner in which the Inter-institutional Coordination Protocol for Prior Consultation and the Guide on holding prior consultations ensure that indigenous peoples are consulted before any programmes for the exploration or exploitation of resources pertaining to their lands are undertaken or authorized. Please also indicate the manner in which the participation of ethnic communities is ensured in the benefits accruing from such activities.

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