Demande directe (CEACR) - adoptée 1994, publiée 81ème session CIT (1994)

1. The Committee notes the information contained in the Government's first report.

2. Article 1 of the Convention. The Committee notes that the Government estimates the indigenous population to number approximately 575,000 persons, but does not indicate if this information is based on the census scheduled for 1993 which was to have a specific indigenous component. Noting the criteria for recognition as indigenous, which includes a feeling of belonging to an indigenous community (section 2 of Decree No. 2001 of 1988), the Committee would appreciate further information indicating how this fundamental criterion of identification is manifested in practice. Please also keep it informed of any developments regarding the 1993 census.

3. Article 2. The Committee recalls that due to the ratification of the Convention and the adaptation of legal and administrative provisions to a pluri-cultural framework in accordance with the provisions of the revised Constitution of 1991, the various state entities active in indigenous affairs are undergoing a transitional period, including among others the Department of Indigenous Affairs (DAI), the Colombian Institute for Agrarian Reform (INCORA) and the National Recovery Plan (NPR). It also recalls its previous comments under Convention No. 107 and in the observation made under the present Convention this year, that this has resulted in a reduced focus on the specific characteristics of indigenous communities; for instance, with the creation in 1991 of the National Agrarian Fund (FINAGRO) as the central agency responsible for agrarian development financing, special credit facilities for indigenous communities have been withdrawn. The Committee draws the Government's attention to its previous request under Convention No. 107 for further information on the mechanisms for inter-institutional coordination and collaboration, and any measures taken or envisaged to provide direct development assistance specially adapted to the needs of indigenous communities.

4. Article 3. The Committee notes that the National Commission on Indigenous Rights was established (by Decree No. 0715 of 28 April 1992) to protect the human rights and fundamental freedoms of the indigenous peoples. Please provide information in the next report whether it is now functioning, and on the structure, functions and work of the Commission so far.

5. Article 5. The Committee recalls the information provided under Convention No. 107 that some indigenous communities in the resguardos in remote areas were facing severe hardship with relation to access to basic necessities. It requests the Government to provide details of any steps taken or contemplated to relieve this problem.

6. Article 6. The Committee notes that consultation with the National Indigenous Policy Council (CONAPI) - established by Decree No. 436 of 10 March 1992 - is mandatory prior to taking any legal initiatives affecting the indigenous peoples, and recalls that CONAPI is in the process of formulating a new indigenous policy. Noting further that the traditional indigenous councils and organizations are recognized as legal entities (Decree No. 1088 of 1993), please provide information on the mechanisms for consultation with, and participation of, the indigenous organizations in the formulation and adoption of the new policy and any other initiatives affecting their well-being. Noting also that CONAPI includes some indigenous representatives, please provide information on the modalities for their representation in CONAPI, and in other state entities active in indigenous affairs.

7. Article 7. The Committee notes from the Government's report that CONAPI is the focal point for defining development priorities and devising a programme of action for indigenous peoples. Please indicate the mechanisms and modalities for the participation of the traditional indigenous councils in the formulation, implementation and evaluation of development programmes and plans in their regions. In this connection, the Committee also recalls that the Government had earlier reported a proposal for a decree to establish feasibility studies and prior consultations for development projects, public works and exploitation of resources, to be undertaken prior to implementation, and repeats its previous request under Convention No. 107 to keep it informed of any further developments in this regard, including further information 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 impact assessment studies (Proceeding No. 6922).

8. The Committee notes that the "accion de tutela" (guardianship proceedings) guarantee the enjoyment of fundamental rights, and that this has been interpreted by the Constitutional Courts as a mechanism to prevent irremedial harm (Case No. T-859, Decision F 428 of 2 July 1992 and Case No. T-2679, Decision T-528 of 18 September 1992). Please indicate whether the decisions of the court: (a) to pay compensation to the affected community for damages to their environment by coalmining (Case No. T-859) and (b) to halt the construction of a highway (Case No. T-2679) have been given practical effect. Please also provide information on any other judicial decisions protecting the rights of indigenous communities from the negative effects of development projects, and on the adoption of legislation to allow the use of "accion popular" initiatives in conflicts relating to environmental rights.

9. Article 8. The Committee notes that within the Indigenous Territorial Units (ETIs), when constituted, and within the resguardos, the indigenous councils have full judicial authority in accordance with their customary laws and practices, as long as this is not contrary to national legislation (article 246 of the Constitution). It also notes indications in the reports of the Department of Indigenous Affairs (DAI) of present and potential conflict in inter-community customs and practices, arising, in particular, as a result of including a number of different indigenous groups in some resguardos, and the Department's suggestion of a systematic and comprehensive compilation of customary law and practice as a step towards resolving these conflicts. The Committee requests the Government to provide information on any measures taken or contemplated in this regard, including the mechanisms for resolving conflicts between customary law and national law.

10. Article 9. The Committee notes the Government's statement that this Article will be implemented by the Organic Territorial Planning Act which is yet to be adopted, and requests the Government to keep it informed of any mechanisms for taking account of indigenous customs in penal matters, including copies of relevant judicial decisions.

11. Article 10. The Committee notes the Government's statement to the United Nations Committee on the Elimination of Racial Discrimination that "it is explicitly forbidden to take account of the personal considerations other than those actually embodied in the law" (UN document CERD/C/191/Add.1). It notes further that whenever an indigenous person commits an act not considered a serious crime in his community, then under section 22 of the Penal Code this person may be rehabilitated in his or her natural surroundings. The Committee requests the Government to provide information on the practical application of this provision.

12. Article 11. The Committee notes that children over the age of 12 may be employed with the permission of the traditional indigenous council, or a responsible government agency with notification to the Ministry of Labour. It requests the Government to provide information on the number of children thus employed, including the criteria for granting the required certificate. In this context, the Committee notes the Government's statement to the United Nations Committee on the Rights of the Child (UN document CRC/C/8/Add.3) that there have been specific cases of the exploitation of children. It requests the Government to provide further information on any enforcement mechanisms in place, or to be adopted, to ensure compliance with the requirements of the Minor's Code (Decree No. 2737 of 1989), and any other generally applicable legislation concerning employment or work of children.

13. Article 14. The Committee notes the efforts of the Government to recognize and protect the rights of ownership and possession of the indigenous peoples to the lands which they traditionally occupy, including the reservas and the resguardos, of which there are reported to be approximately 246. The Committee notes also that the Organic Territorial Planning Act, which will regulate the demarcation of the Indigenous Territorial Units (ETIs), remains under consideration. Noting that the ETIs will have their own politico-administrative system which may include districts, municipalities and provinces, including reservas and resguardos (article 286 of the Constitution), the Committee requests the Government to keep it informed of further developments in their demarcation, including the modalities for ensuring a harmonious integration of the different local governmental entities to be included within ETIs.

14. The Committee notes the Government's statement that the rights of nomadic groups to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities, are recognized by the creation of resguardos. Please indicate the form and manner in which this is implemented within the structure of the resguardos, including whether this implies a requirement for the nomadic communities to settle in one area.

15. The Committee notes that INCORA, which is responsible for the creation, configuration and planning of indigenous lands, is engaged in identifying indigenous lands and restructuring reservas as resguardos. The Committee also notes indications of certain problems inherent in this process. In this connection, the Committee notes that some settlers' lands are included within the resguardos, and that some indigenous communities have had their traditional lands allocated to other resguardos. It also notes that some resguardos include property which earlier title holders may still claim under existing legislative provisions. The Committee requests the Government to provide information on any procedures which may have been adopted or are envisaged to resolve conflicts in land claims within the ongoing process of land demarcation in the country.

16. Article 15. The Committee notes the Government's statement that indigenous peoples' rights extend to both renewable and non-renewable natural resources; but that although non-renewable resources belong to the nation, indigenous peoples have a preference to exploit them under the Mining Code. It also recalls the Government's statement to the UN Committee on all Forms of Racial Discrimination (UN document CERD/C/191/Add.1) that it guarantees the rights of the indigenous communities to renewable natural resources only. The Committee requests the Government to provide further information on any permits granted to indigenous communities to exploit non-renewable natural resources in their lands, and on the procedures whereby indigenous peoples participate in the use, management and conservation of all natural resources, including those to which the Government retains title. Please also provide further information on the rights that indigenous communities have over natural resources within the resguardos.

17. The Committee notes that article 330 of the Constitution stipulates that any exploitation of natural resources in indigenous territories shall be done without damaging the cultural, social and economic integrity of the indigenous communities and that the Government shall ensure the participation of representatives of the communities concerned in taking any such decisions. It also notes that deforestation, mining and other extractive projects undertaken by settlers and mining companies in indigenous lands has caused contamination of rivers and waterways, in addition to soil deterioration, with the resulting impact on the traditional economic activities of the indigenous communities. Please indicate any procedures of consultation with the indigenous communities, and their participation in the benefits of, any explorative activities on their lands and the modalities for payment of compensatory damages sustained.

18. The Committee recalls the Government's policy of environmental conservation (National Code on Natural Resources and Act No. 622 of 1977) and that the establishment of reservas and resguardos within such "special areas of management" must conform with this policy. Recalling also that the rights of the indigenous communities to the land and use of renewable natural resources within their areas is guaranteed, the Committee requests the Government to provide information on any measures taken to specially safeguard the traditional economic activities of indigenous peoples living within the protected areas, including modalities for compensation for any resulting damage.

19. Article 16. The Committee notes the information regarding the Wayú community in the Caracolí region who were relocated as a result of contamination of their traditional lands due to coalmining. The Committee also notes that they were provided with alternative lands and compensation for the damages incurred. Please provide details of any legal and procedural regulations governing relocation. Please also include information on how the right to return to their traditional lands is guaranteed when the reason for their relocation ceases to exist.

20. Article 17. The Committee notes that all resguardos are transferred to the indigenous communities as non-alienable property, and that they cannot transmit land rights outside their own community (article 329 of the Constitution). Please supply information on any consultations undertaken with the peoples concerned when deciding to make all titles inalienable, and whether there are any provisions for altering the character of the titles if the need should arise.

21. Article 18. The Committee recalls the Government's statement in its 1992 report under Convention No. 107 that the greatest threat to indigenous lands comes from illegal settlers. It also notes the Government's efforts to remove them from indigenous lands, including the procedures established by INCORA, and the legislative and punitive regulations prohibiting illegal intrusion onto indigenous lands. Please continue to supply information on any measures taken or contemplated to prevent settlers from unlawful entry upon, or use of, indigenous lands, including details of any penalties imposed for infringements, and on measures for their expulsion.

22. Article 19. The Committee notes that there are a number of agencies responsible for resource allocation to indigenous communities, including INCORA, with FINAGRO as the central authority for agricultural credit facilities. The Committee requests the Government to provide information on any measures taken or contemplated to facilitate the access of indigenous communities to credit and marketing facilities, and any other technical services and assistance to enable them to develop their lands in a more sustainable manner.

23. Article 20. The Committee notes from the information provided by the Government that a special department, the Department of Special Labour Relations, has been established to deal with questions relating to vulnerable groups of workers, including indigenous workers (Decree No. 2145 of 1992). Noting that many indigenous workers are employed in non-wage earning occupations such as subsistence farming, hunting and gathering, in addition to being daily and migrant workers, the Committee requests the Government to provide information on the extent to which the recruitment and conditions of employment of these workers are monitored by the Department. As no information is available regarding equal remuneration for work of equal value, medical and social assistance, occupational safety, health and social security benefits, and housing, please provide further information in these respects. Please also provide information on the frequency of labour inspections in indigenous areas.

24. Articles 21 and 22. The Committee notes the information provided by the Government with respect to vocational training and requests the Government to provide further information on any further measures taken or envisaged to provide such facilities to the indigenous peoples based on their special needs, and devised with their cooperation and collaboration.

25. Article 24. The Committee notes there is a draft proposal before Congress for a social security scheme which proposes that indigenous communities shall benefit from old age pensions at a lower age than is required for other entitled persons. Please continue to provide information on any further developments in this field.

26. Article 25. The Committee notes the information on health care facilities provided by the Government indicating that health care is provided free of charge. It also notes the information communicated by the World Health Organization in its report on "Implementation of the Global Strategy for Health for All by the Year 2000" (Second Evaluation - Vol. 3 Region of the Americas). Noting that many indigenous communities live in remote areas, and that there have been reports of cholera, malaria, tuberculosis and respiratory diseases, in addition to malnutrition, please provide information on any measures taken or contemplated to meet the health needs of the indigenous communities, including steps to provide potable water, sanitation and other health facilities to indigenous communities; any measures taken to assign responsibility and control to the people concerned; participatory means of devising and administering health care; concrete measures to adapt traditional health practices with modern medicines; and any training facilities provided to local community workers.

27. Articles 26 and 27. The Committee notes the constitutional and legal provisions endorsing ethno-education. In this context, the Committee recalls Decree No. 1142 of 1978 which requires educational projects to be undertaken with the participation and consent of the indigenous communities and that such projects have to be adapted to the characteristics of the peoples concerned. Please provide information on the measures taken or contemplated to devise a programme of ethno-education, with the participation or involvement of the peoples concerned, which takes into account their distinct social, economic and cultural characteristics and addresses the specific needs of these vulnerable groups.

28. Articles 28 and 29. The Committee notes from the statistical data annexed to the report that 46 per cent of children and young adults between the ages of 7 and 17 are illiterate, and of the persons who have received some education, only 6.2 per cent are bilingual. It recalls that article 10 of the Constitution provides for bilingual education in indigenous communities with their own linguistic traditions and that the Department of Indigenous Affairs describes indigenous education as "very precarious". Please provide detailed information in the next report on any measures taken or envisaged, with the participation of the peoples concerned, to achieve the objective of equality in education for the indigenous communities, including bilingual educational facilities.

29. Article 31. The Committee notes from the Government's report that information on indigenous rights, including the relevant constitutional provisions, has been disseminated to civil and military authorities. Please provide details of any steps taken or envisaged to promote awareness among other segments of the population, including any educational materials which provide a fair, accurate and informative portrayal of indigenous traditions and cultures.