Solicitud directa (CEACR) - Adopción: 1998, Publicación: 87ª reunión CIT (1999)

1. The Committee takes note of the Government's report and attached documentation. The Committee in its previous observation asked the Government to provide information on the following points.

2. Article 1 of the Convention. The Committee notes the information provided by the Government on the size of the country's indigenous population, which is currently estimated at 603,000.

3. Article 2. The Committee takes note of the Government's explanation contained in the annexes to the report on the mechanisms for coordination among the various institutions responsible for indigenous affairs. The Committee asks the Government to indicate whether, in developing these mechanisms, it has provided for participation by representatives of the peoples concerned.

4. Article 5. In its earlier comment regarding some indigenous communities living in resguardos in remote areas and facing severe hardship in relation to access to basic necessities, the Committee observed that, according to the Government, resources had been transferred to these communities to be used as they saw fit. The Committee again expresses the hope that the Government will provide more information on the practical effect of these actions. See also paragraph 6 below, which is also relevant to this question.

5. Article 6. In its previous comments, the Committee requested information on participation by indigenous peoples in the development of a new indigenous policy and on new modalities for participation by indigenous people in the National Indigenous Policy Council (CONAPI) and in other state entities active in indigenous affairs. In its reply, the Government submitted to the Committee two books entitled "Indigenous Peoples in the Country and in America" and "Toward the Recognition of Indigenous Rights", both of which were published by the Directorate General for Indigenous Affairs (DGAI) in 1998 and contain detailed discussions on the formulation of an indigenous policy involving consultations with and participation by indigenous communities in accordance with the provisions of the Convention. The Committee welcomes this detailed examination of policy on participation. The Committee asks the Government to indicate in its next report how the policy of participation and consultation announced in these books is implemented and to provide an assessment of its application.

6. Article 7. The Committee noted previously from the Government's report that the National Recovery Plan (PNR), together with other state entities, had been actively involved in providing development assistance for projects according to the specific characteristics of each indigenous group. The Committee also noted that CONAPI was the focal point for defining development priorities and devising a programme of action for indigenous peoples. The Committee again requests information on the mechanisms for collaboration between PNR and CONAPI and the extent of participation of indigenous communities in the formulation, implementation and evaluation of plans and programmes directly affecting them.

7. The Committee again recalls its request for information on the proposal for a decree to establish feasibility studies and prior consultations to be undertaken prior to the implementation of development projects, public works and exploitation of resources; and on the Decision of the Court of First Instance that a petroleum company was in violation of Articles 7(3) and 15 of the Convention for not carrying out prior environmental impact assessment studies (Proceeding No. 6922). It repeats its request to the Government to provide information in its next report on any further developments in this regard.

8. The Committee previously noted with interest Decree No. 1386 of 1994, according to which the indigenous authorities in the resguardos have the right to decide the manner and form of the share of national revenue which corresponds to their resguardos, and that this is done through projects formulated by the indigenous communities themselves which are presented to the local municipal authorities for consideration and approval. The Committee again requests the Government to provide information in its next report on the practical application of this Decree, including the number of communities which have availed themselves of this opportunity and the modalities for cooperation between the municipal authorities, CONAPI and other state entities providing assistance to indigenous communities.

9. The Committee recalls its previous comments regarding the "acción de tutela" (guardianship proceedings) in which it requested information on the implementation of the Constitutional Court's decisions regarding: (i) compensation to communities affected by environmental damage caused by coal mining (Case No. T-859, Decision F-428, 2 July 1992); and (ii) to halt the construction of a highway (Case No. T-2679, Decision T-528 of 18 September 1992). The Committee again requests the Government to provide this information in its next report.

10. The Committee noted that the Constitutional Court in its ruling on Case No. T-12559 calling for the creation of a permanent oversight committee, including representatives from the affected communities, to prepare an environmental management plan, including studies and analysis. The Committee again requests the Government to provide further information on the establishment and activities of the permanent oversight committee with its next report.

11. Article 8. The Committee noted that the legislative measures to regulate the coordination among the indigenous and the national jurisdictions had not yet been drafted, mainly owing to a lack of knowledge about the different indigenous legal systems, of which there are estimated to be about 84. In addition, the Committee noted that the Council for Constitutional Development (Consejería para el Desarrollo de la Constitución) was preparing a study on the systematization of the juridical systems of the Paez, Wayuú, Tule and Kogi communities which was to be completed in July 1994 and was to serve as the basis for a comprehensive compilation of customary law and practices. The Committee, noting the fact that measures are being taken to promote and apply the indigenous jurisdictions and to coordinate them with the national jurisdiction, requests the Government to keep it informed of further developments in this process and on any cases that have arisen in practice.

12. The Committee noted that the Permanent Committee on Indigenous Rights was mediating inter-ethnic and inter-community conflicts arising from land rights, exploitation of natural resources, and legal and juridical representations. It once again requests the Government to provide further information on these cases, the modalities for cooperation between the Permanent Committee on Indigenous Rights and the relevant traditional indigenous authorities, including the mechanisms for resolving any conflicts between customary law and national law.

13. Article 9. The Committee noted the Government's statement that this Article is of immediate application. It again requests more information on its practical implementation.

14. Article 10. The Committee requests the Government to provide more information on the practical application of section 22 of the Penal Code whereby an indigenous person who commits an act not considered a serious crime in his or her community may be rehabilitated in his or her natural surroundings.

15. Article 11. The Committee noted the information in the previous report regarding the employment of children. It again requests the Government to provide information on enforcement mechanisms to ensure compliance with the legislative measures in force, with particular reference to the Minors' Code (Decree No. 2737 of 1989) and to indicate whether the labour inspectors in the Special Labour Relations Department have encountered this problem. Please also include statistics on the number of indigenous children engaged in employment when this information is available.

16. Article 14. The Committee requested the Government to keep it informed of further developments with regard to the Organic Territorial Planning Act, which will regulate the demarcation of the Indigenous Territorial Units (ETIs), and to provide a copy of the Act when it is adopted. In this context, the Committee also noted that in 1992, CONAPI appointed a joint commission with representatives of indigenous organizations and indigenous senators, the Department of Indigenous Affairs (DAI) and other state entities, to initiate a process of consultations about the basic elements of the Organic Territorial Planning Act and to elaborate a draft law on the concept of indigenous territories. Please provide further information in this regard.

17. The Committee noted from the report that the Nukak-Maku is the only indigenous group which may be identified as nomadic, and that this is directly related to their hunting and gathering activities. Within the ongoing process of demarcation, creation and restructuring of indigenous lands, the Committee again requests the Government to provide information on the measures taken or envisaged to recognize and accommodate the rights of this nomadic group to use lands they do not exclusively occupy but to which they have traditionally had access.

18. The Committee again requests the Government to provide information on the measures taken or contemplated to resolve conflicting land claims, whether between settlers and indigenous groups or arising from the juxtaposition of hunting and fishing rights of different indigenous communities within the same territory, as part of the ongoing process of demarcation of resguardos.

19. Article 15. Noting that the majority of indigenous communities pursue traditional activities, such as hunting, fishing and gathering, to support themselves, the Committee reiterates its request to the Government for further information on the special measures to strengthen the economic bases of the indigenous communities in the use, management and conservation of all the natural resources within their territories. The Committee considers that, although no special measures appear to have been taken to safeguard the rights of indigenous peoples to natural resources as provided in Article 15, these rights do appear to enjoy at least basic protection to the degree that indigenous peoples have exclusive rights over their territories, subject to the considerations set forth in the following paragraph.

20. The Committee notes with interest the "acción de tutela" decision issued by the Constitutional Court (13 September 1993) regarding the illegal deforestation in the resguardo of the Emberá-Catío indigenous community. It also notes that a request to the DAI for a permit or concession to extract forest resources from an indigenous area must be accompanied by an authorization from the relevant indigenous authority. The Committee did not note any corresponding requirement that indigenous authorization be obtained prior to exploration or exploitation of other resources in indigenous territories (Article 15(2)), and again requests the Government to indicate any initiative it may have taken in this respect.

21. Noting that indigenous communities have been adversely affected by the deforestation, mining and other extractive projects undertaken by settlers and mining companies in indigenous lands, the Committee again requests the Government to provide further information on the criteria for granting concessions for extractive and explorative activities in indigenous areas, including the extent to which the requirement of authorization from the relevant indigenous authority is enforced. Please also provide information on the participation of the indigenous peoples in any benefits or payment for damages incurred as a result of such activities.

22. The Committee noted with interest the draft legislation and regulation on biodiversity which includes mechanisms to guarantee indigenous communities the benefits of using their traditional knowledge in this field, and requests the Government to keep it informed in this respect.

23. With regard to the seismic exploration in the resguardo of the Uwa community by a private company, which the community in question opposed, owing to its detrimental effects on their health and well-being, the Committee again requests the Government to indicate whether the seismic exploration project has been discontinued.

24. The Committee again requests the Government to keep it informed of the outcome of the study due to be carried out by the Colombian Institute for Agrarian Reform (INCORA) and the Colombian Anthropological Institute, with a view to establishing a special regime which will recognize the permanence of the indigenous communities in the national parks and their economic right to the use of renewable natural resources, without detriment to the existing environmental conservation policy.

25. Article 16. The Committee noted that, by virtue of articles 63 and 329 of the Constitution, if an indigenous community had to be resettled from a resguardo, once the reason for resettlement ceased to exist, the community could return to its traditional lands. It could not lose its collective right to those lands, since this right is inalienable. The Committee also noted the information given regarding the resettlement of the Wayuú community in the Caracolí region affected by earthquakes and avalanches. However, the Committee noted that some indigenous communities were displaced by settlers taking over their lands. Please provide information on any measures taken or envisaged to facilitate the return of these communities to their traditional lands.

26. Article 18. Noting that there are indications that the indigenous communities in the Andean region are losing their lands to settlers at a rapid rate, the Committee again requests the Government to provide information in its next report on any measures taken or contemplated to protect the land rights of the indigenous peoples and to prevent others from securing the ownership, possession or use thereof.

27. Article 19. The Committee noted that, by virtue of Decree No. 2147 of 1993, agricultural credit facilities for indigenous communities had been discontinued. The Committee also noted the information regarding the credit and production facilities available to the indigenous communities within a joint project with PNR and the World Food Programme. The Committee again requests the Government to keep it informed in this regard, and in particular to provide information on any other measures aimed at facilitating the access of indigenous communities to credit and marketing services, and to other technical services and assistance. The Committee also once again requests the Government to provide information in its next report on the practical application of Act No. 160 of 1994, which creates the National System of Agrarian Reform and Development of Rural Workers and provides for certain benefits for rural workers, including indigenous workers.

28. Article 20. The Committee noted the information that the recruitment and conditions of employment of different workers are monitored by the labour inspectors. As regards indigenous workers, the Committee again requests further information on any supervisory activities of the Department of Special Labour Relations in indigenous areas. The Committee also requests information on equal remuneration for work of equal value, medical and social assistance, occupational safety, health and social security benefits, and housing for indigenous workers, since neither the previous report nor the present report addresses these issues.

29. Articles 21 and 22. The Committee notes that, apart from indigenous participation in vocational training and qualification programmes run by national entities, there are also other qualification programmes run by the Ministry of Agriculture and others, including "Intercultural Training in Community Projects Management" (Capacitación intercultural en gestión de proyectos comunitarios), which is run in cooperation with the World Bank and provides assistance to ten indigenous peoples in four regions of the country. The Committee would like information on any measures taken or envisaged by the National Apprenticeship Service (SENA) to provide vocational training facilities to the indigenous peoples, based on their special needs.

30. Article 24. The Committee noted the information regarding the new Social Security Law (Act No. 100 of 23 December 1993), section 257 of which permits indigenous persons to become eligible for pension benefits at an earlier age than the majority population (50 years instead of 65). The Committee notes that the indigenous peoples are starting to set up health resources administrative companies under the new Act and that the process of adapting the Act to take account of the many different indigenous cultures has begun. The Committee asks the Government to keep it informed in this regard and to provide statistics on the number of indigenous persons benefiting from this scheme, and on any other measures taken or contemplated to provide other social security benefits to indigenous communities working in the informal sector.

31. Article 25. The Committee noted the information regarding the health facilities available to indigenous communities, and resolution No. 05078 of 30 June 1992 establishing an advisory commission for the preservation and development of traditional medicines and therapeutic alternatives. The Committee again requests the Government to provide more information on the measures taken or contemplated to meet the health needs of the indigenous communities, including the work of the advisory commission.

32. Articles 26 to 29. The Committee noted the detailed information regarding ethno-education. It again requests the Government to keep it informed in this regard and to indicate the results obtained with specific reference to children and young adults between the ages of 7 and 17.

33. Article 31. The Committee noted that the DAI and the National Recovery Plan (PNR) were taking steps to inform various state entities about the complex legal regime regulating the relationship between the State and the indigenous peoples in the country, including by organizing training seminars and workshops, and by dissemination of relevant material. The Committee requests the Government to keep it informed in this respect.