Demande directe (CEACR) - adoptée 1995, publiée 83ème session CIT (1996)

1. The Committee notes the Government's report for the period ending 30 June and the attached documentation. It also notes the supplementary information received from the Department of Indigenous Affairs.

2. Article 1 of the Convention. The Committee notes that the Government estimates the indigenous population to number approximately 575,000 based on the census of 1985, and that the 1993 census, which includes a specific indigenous component, will yield more definitive figures. It notes that the 1993 census includes Amerindian ascendancy and the feeling of belonging to an indigenous community as criteria for recognition as being indigenous. It requests the Government to provide information on the results of the 1993 census with its next report.

3. Article 2. The Committee notes the explanation of the Government regarding the adaptation of juridical and institutional provisions to the pluri-cultural framework of the new Constitution. It notes in this respect that the Department of Indigenous Affairs (DAI) has become the Directorate General of Indigenous Affairs attached to the Ministry of Government and that other organizational changes have taken place. It understands from these explanations that although institutions have changed, the focus of various programmes on the specific characteristics of indigenous communities is still in place. The Committee again requests information on the mechanisms for coordination among different institutions.

4. Article 3. The Committee notes from the Government's report that the Permanent Commission on Indigenous Rights established by Decree No. 0715 of 28 April 1992 to protect the human rights and fundamental freedoms of the indigenous peoples, is now functioning, and that it is composed of representatives of DAI, the Presidential Council on Human Rights, the Office of the People's Advocate, the Procurator General's Office and indigenous organizations. The Committee notes that it has received reports of human rights violations, including unlawful killings in indigenous communities in Sierra Nevada de Santa Marta, and that the Permanent Commission is investigating human rights violations, in cooperation with the Office of the People's Advocate, and requests the Government to provide further information in this regard. It also refers the Government to its comments under Article 8.

5. Article 4. The Committee notes with interest an "acción de tutela" in the Constitutional Court recognizing the language of the Curripaco community as an official provincial language in the Guainía Province (Case No. T-36956, Decision No. T-384 of 31 August 1994). It requests the Government to keep it informed of developments in this regard.

6. Article 5. The Committee recalls its previous comment regarding some indigenous communities in resguardos in remote areas who are facing severe hardship with relation to access to basic necessities. It notes from the report that the Government has dealt with this by transferring resources to these communities so that they may decide on how to use these resources. The Committee hopes the Government will provide further information on the practical effect of these actions. See also paragraph 10 below, which appears to be related to this question.

7. Article 6. The Committee notes from the report of the Directorate General for Indigenous Affairs (DAI) presented to the National Congress in May 1994 that the National Indigenous Policy Council (CONAPI) continues to work on the formulation of a new indigenous policy. In this respect, the Committee recalls its previous request for information on: (i) the mechanisms for consultation with, and participation of, the traditional indigenous councils and organizations (recognized as legal entities by Decree No. 1088 of 1993) in the formulation and the adoption of the new indigenous policy, and any other initiatives affecting their well-being; and (ii) the modalities for the representation of indigenous communities in CONAPI and in other state entities active in indigenous affairs. In this connection, the Committee notes the DAI's statement that there is an urgent need to ensure the right of consultation and participation of the concerned communities in any matters affecting their well-being.

7bis. The Committee also notes with interest the information in the report on how it has worked together with the National Indigenous Organization (ONIC) on consultations concerning land rights, and encourages it to continue to follow this policy.

8. Article 7. The Committee notes from the Government's report that the National Recovery Plan (PNR), together with other state entities, has been actively involved in providing development assistance for projects according to the specific characteristics of each indigenous group within the framework of the concept of the sustainable development of natural resources, conservation of bio-diversity, and protection of indigenous cultures. It also recalls that CONAPI is the focal point for defining development priorities and devising a programme of action for indigenous peoples. The Committee therefore 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.

9. The Committee recalls its previous request for information regarding a 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 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). It requests the Government to provide information in its next report of any further developments in this regard.

10. The Committee notes 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. It requests the Government to provide information on the practical application of this Decree in its next report, including the number of communities which have availed of this opportunity, and the modalities for cooperation between the municipal authorities, CONAPI and other state entities providing assistance to indigenous communities.

11. 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 the affected communities for environmental damages caused by coalmining (Case No. T-859, Decision F 428 of 2 July 1992); and (ii) to halt the construction of a highway (Case No. T-2679, Decision T-528 of 18 September 1992). It requests the Government to provide this information in its next report.

The Committee notes that legislation to allow "acción popular" to be used to protect environmental rights is under consideration and requests the Government to keep it informed in this regard. In this context the Committee notes that the Constitutional Court has upheld the right of indigenous communities to environmental protection by "acciones de tutela" in Case No. T-101, Decision T-415 of June 1992; and in Case No. T-12.559, Decision No. T-405 of 23 September 1993 concerning the installation of a joint US-Colombian military base within the territory of the Resguardo de Monochoa, home of the Huitoto and Muinane people, which allegedly violated Articles 6 and 7 of the Convention. It notes further that in its decision on Case No. T-12.559, the Constitutional Court ruled 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 requests the Government to provide further information on the establishment and activities of the permanent oversight committee with its next report.

12. Article 8. The Committee notes that the Special Indigenous Jurisdiction established under article 246 of the Constitution, is now functioning and that the indigenous authorities exercise jurisdiction in the area of conflict resolution within their territories, provided it is in accordance with national law. It notes also that the legislative measures to regulate the coordination among the indigenous and the national jurisdictions have not yet been drafted, mainly due to a lack of knowledge about the different indigenous legal systems, of which there are estimated to be about 84. In addition, the Committee notes that the Council for Constitutional Development (Consejería para el Desarrollo de la Constitución) is 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, which may serve as the basis for a comprehensive compilation of customary law and practices. The Committee requests the Government to keep it informed of further developments in this process.

13. The Committee notes that the Permanent Committee on Indigenous Rights is mediating inter-ethnic and inter-community conflicts arising from land rights, exploitation of natural resources, and legal and juridical representation, in some regions including the municipalities of Juradó, Chacó; Pueblo Rico and Mistratí, province of Risaralda; Caloto and la Paila, province of Cauca; Sierra Nevada of Santa Marta and Perijá in Magdalena and Ceasar Provinces. It 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 conflicts between customary law and national law. The Committee also notes the Government's comments on the impracticality of providing separate resguardos to certain communities, in reply to its previous request.

14. Article 9. The Committee notes the Government's statement that this Article is of immediate application, and requests further information on its practical implementation.

15. Article 10. The Committee refers the Government to its earlier request for information regarding 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.

16. Article 11. The Committee notes the information in the report regarding the employment of children. It requests the Government to provide information on enforcement mechanisms to ensure compliance with the legislative measures in force, with particular reference to the Minor's 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.

17. Article 14. The Committee notes the continuing 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, and that at present there are 377 resguardos and 12 reservas. It notes further that the Organic Territorial Planning Act, which will regulate the demarcation of the Indigenous Territorial Units (Entidades Territoriales Indígenas) (ETIs) remains under consideration. The Committee requests the Government to keep it informed of further developments in this regard, and to provide a copy of the Act when it is adopted. In this context the Committee also notes that in 1992 CONAPI appointed a joint commission with representatives of indigenous organizations and indigenous senators, the 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.

18. The Committee notes from the report that the Nukak-Maku are 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 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. In this connection, the Committee notes with interest an "acción de tutela" in which the Constitutional Court emphasized the State's responsibility to protect and guarantee the ethnic and cultural identity of the indigenous Nukak-Maku community (Case No. T-20973, Decision No. T-342/94 of 27 July 1994).

19. The Committee notes that as a general procedure, the process of demarcation of an indigenous territory by INCORA is done under the guidance or direction of the concerned community, and that the land claims of others living within the demarcated area are taken into account in this process. However, it notes that INCORA has encountered some difficulties caused by the dislocation of some indigenous groups by settlers living on their lands; and by the juxtaposition of hunting and fishing rights of different indigenous communities in the same territory especially in the Andean regions of the country. The Committee notes that this is in addition to the problems commented on previously such as the re-allocation of the traditional lands of one community to another resguardo. It requests the Government to provide information on the measures taken or contemplated to resolve conflicting land claims within the ongoing process of demarcation of resguardos.

20. Article 15. The Committee notes from the explanations in the Government's report that sub-surface and non-renewable resources, as well as renewable resources, are the property of the State with the exception of any rights acquired through civil legislation (National Code on Renewable Natural Resources and Protection of the Environment - Act No. 2811 of 1974). It notes further that natural resources such as water, fauna and hydro-biological resources are considered as "res nullius", i.e. they belong to the nation. However, indigenous communities do not require permits or concessions for hunting or fishing as long as this is for their personal use, but permits, concessions or authorizations by the competent authority are required for exploitation for commercial purposes in the same way for indigenous people as for other citizens. In addition, the Committee notes that when INCORA creates or demarcates a resguardo, the indigenous communities in the area do not acquire the rights over public waters, fauna, air or other renewable natural resources, but that in principle, their subsistence rights have a prior claim on renewable natural resources. It also notes that indigenous communities require authorization from the competent regional authority to extract forest produce, and that some communities have been granted such permission. Noting that most indigenous communities are engaged in traditional economic activities such as hunting, fishing and gathering for their livelihood, the Committee requests further indications from the Government of 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 specially 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 consideration in the following paragraph.

21. The Committee notes with interest the "acción de tutela" of 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 does not note any corresponding requirement for indigenous authorization before exploration or exploitation of other resources in indigenous territories (Article 15(2)), and requests the Government to indicate what decision it may have taken in this respect. 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, it requests the Government to provide further information on the criteria for granting the concessions for extractive and explorative activities in indigenous areas, including the extent to which the requirement for authorization from the relevant indigenous authority is enforced. Please also provide information on their participation in any benefits, or payment for damages incurred as a result of such activities.

The Committee notes with interest the draft legislation, and regulation, on bio-diversity 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.

22. The Committee notes with interest from a summary report of the DAI on exploration and exploitation of natural resources in indigenous areas, that it held consultations with the Uwa community in resguardo Aguantiva and el Pinal in the Eastern Cordillera region regarding seismic exploration in their resguardo by a private company, and that, due to its detrimental effects on their health and well-being, the Uwa decided against the planned exploration. The Committee requests the Government to indicate whether the proposed plans for the seismic exploration have been discontinued.

23. With reference to the traditional economic activities of the indigenous communities and environmental protection, the Committee notes that the Government has entered into a number of agreements with various indigenous communities to this end. However, it also notes that section 7 of Decree No. 622 of 1977 highlights the incompatibility of a national nature park with the creation of an indigenous reserve, and that INCORA and the Colombian Anthropological Institute are to study the establishment of a special regime which will recognize the permanence of the indigenous community and their economic right to renewable natural resource use, without damaging the policy of environmental conservation. The Committee requests the Government to keep it informed in this regard.

24. Article 16. The Committee notes that, 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 because it could not lose the collective rights to this land, which right is inalienable under articles 63 and 329 of the Constitution. It also notes the information regarding the resettlement of the Wayuú community in the Caracolí region affected by earthquakes and avalanches. However, the Committee notes that some indigenous communities have been dislocated as a result of 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.

25. Article 17. The Committee notes from the report that INCORA did not hold consultations with the indigenous communities prior to making their titles inalienable. It notes further that this is according to existing legal and constitutional provisions, and that a constitutional amendment would be necessary in order to alter the character of the titles.

26. Article 18. The Committee notes that INCORA has the responsibility for protecting the territorial and cultural integrity of the indigenous territories within the framework of existing laws, but that it is the DAI which has the authority to request police action for protection from unlawful intrusions by settlers. Noting that there are indications of the indigenous communities in the Andean region losing their lands to settlers at a rapid rate, the Committee requests the Government to provide information in its next report of any measures taken or contemplated to protect the land rights of the indigenous people and to prevent others from securing the ownership, possession or use thereof.

27. Article 19. The Committee notes that special agricultural credit facilities for the benefit of indigenous communities have been discontinued, since INCORA is no longer authorized to grant credits and technical assistance to indigenous communities (Decree No. 2147 of 1993), and that FINAGRO facilitates access to credit facilities for indigenous communities on an equal basis with the rest of the population; as a result there is a significant diminishing of assistance specifically directed to indigenous communities. However, it notes the information regarding credit and production facilities available to indigenous communities within a joint project with PNR and the World Food Programme, and requests the Government to keep it informed in this regard, including information on any other measures to facilitate the access of indigenous communities to credit and marketing facilities, and other technical services and assistance. The Committee also notes 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 ones. It requests the Government to provide information on the practical implementation of this Act in its next report.

28. Article 20. The Committee notes from the information in the report that the indigenous communities are mainly engaged in occupations within their areas. Noting that the recruitment and conditions of employment of different workers are monitored by the labour inspectors, it requests further information on any supervisory activities of the Department of Special Labour Relations in indigenous areas. The Committee also requests information on the equal remuneration for work of equal value, medical and social assistance, occupational safety, health and social security benefits, and housing for indigenous workers, as the present report is silent on these matters.

29. Articles 21 and 22. The Committee notes from the Government's report to the UN Committee on Economic, Social and Cultural Rights that Act No. 119 of 1994 provides for the restructuring and modernization of SENA, the National Apprenticeship Service (UN document E/1994/104/Add.2 of 15 August 1994). It requests information on any steps taken or envisaged by SENA to provide vocational training facilities to the indigenous peoples based on their special needs, and devised with their cooperation and collaboration.

30. Article 24. The Committee notes the information in the report regarding the new Social Security Law (Act No. 100 of 23 December 1993), section 257 of which permits indigenous persons to be eligible for pension benefits at an earlier age than the majority population (50 years instead of 65). It requests the Government to keep it informed in this regard, including statistics on the number of indigenous persons benefiting from this scheme, and any other measures taken or contemplated to provide other social security benefits to indigenous communities working in the non-formal sector.

31. Article 25. The Committee notes the information regarding the health facilities available to indigenous communities, and that resolution No. 05078 of 30 June 1992 establishes an advisory commission for the preservation and development of traditional medicines and therapeutic alternatives. It requests the Government to continue to provide further 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 notes the detailed information regarding ethno-education. It requests the Government to keep it informed in this regard, including the results obtained with specific reference to children and young adults between the ages of 7 and 17.

33. Article 31. The Committee notes that the knowledge of indigenous legislation among public officials is not very widespread, and that the DAI and the National Recovery Plan (PNR) are 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. It requests the Government to keep it informed in this respect.