Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

1. In 2004, the Committee noted the detailed report provided by the Government, which was received in November and due to its late arrival only certain aspects of it were analysed, with the remaining matters being examined in the present direct request.

General policy

2. Article 1 of the Convention. The Committee notes that there are 36 indigenous peoples and peoples of origin in Bolivia grouped together in two organizations: the Confederation of Indigenous Peoples of Bolivia (CIDOB), which covers the peoples of the eastern part of the country; and the National Council of the Ayllus and Marcas of the Qollasuyo (CONAMAQ), which covers the peoples of origin in the West of Bolivia (the Andean area and the high valleys). The report indicates that, for the first time in Bolivia, a question was included in the National Census of the Population and Housing of 2001 on ethnic self-identification and, according to these data, 61.8 per cent of the Bolivian population identifies itself with an indigenous nation or nation of origin. The Committee would be grateful if the Government would indicate the manner in which legal recognition of this identity is granted, for example through the existence of procedures or registers, so that the peoples concerned can benefit from the protection afforded by the Convention. The Government also indicates that, although there is a minority population of persons of African extraction, and that there has been significant interbreeding with persons from indigenous groups and groups of origin, and particularly the Aymara, they are not included in the category of indigenous groups or groups of origin. The Committee considers that, if such groups show the characteristics set out in Article 1, paragraph 1(a) or (b), of the Convention and identify themselves as indigenous or tribal peoples, they are covered by the provisions of the Convention.

3. Articles 2 and 33. Coordinated and systematic policy. The Committee notes that, according to the report, in a context of great dispersion of the support provided for indigenous development, a structured approach has been developed focusing on fundamental aspects and the ethnic democratization of the country. It notes that in 2003 a Ministry without portfolio was created with responsibility for Indigenous Affairs and Peoples of Origin (MAIPO), with two deputy Ministers: the Deputy Minister for Policies and Management of the Low Lands; and the Deputy Minister for Policies and Management of the High Lands. It indicates that these are the leading state bodies for indigenous matters in the country and are responsible for ensuring the preparation and implementation of standards, policies, programmes and projects relating to indigenous peoples, even though other ministries, such as the Ministry of Mining and Hydrocarbons, also manage projects relating to indigenous matters in their fields of competence.

4. The Government indicates that, in order to facilitate the participation of indigenous peoples, an Advisory Council of Indigenous Peoples and Peoples of Origin of Bolivia has been established, composed of six government representatives and six representatives of indigenous organizations. This Council has operated on an irregular basis, particularly due to the constant rotation of the personnel of both the state bodies and indigenous organizations, but the Government has indicated that priority is to be given to its reactivation and consolidation. The Committee considers that, in accordance with Article 2 of the Convention, coordinated and systematic action, with the participation of indigenous peoples, is fundamental for the proper application of the Convention. The Committee is aware of the institutional problems affecting the country, but at the same time expresses concern at the irregular functioning of the machinery for participation and consultation. The achievement of permanent dialogue at all levels, as required by the Convention, would contribute to preventing conflict and building an inclusive model of development. Furthermore, the Committee notes that the fundamental problem for the application of the Convention is not so much the absence of legislation, as the difficulties in its implementation. The Committee urges the Government to redouble its efforts to achieve the coordination of existing programmes, with the participation of indigenous peoples at all stages of their implementation, from planning through to evaluation, in accordance with Article 2, paragraph 1, and Article 33, paragraph 2(a) and (b), of the Convention.

5. Discrimination. The Government indicates that practices of exclusion and discrimination continue to affect public policies (lack of clarity and precision, particularly in the promotion of equitable economic development), in the formulation and implementation of laws and that, for this reason, the Government has requested the technical assistance of the Office. The Committee, which hopes that the Office will provide the necessary technical assistance, will follow this matter, which can make an effective contribution to resolving the problems of discrimination referred to by the Government.

6. Article 4. Special measures. The Committee notes that, according to the report, as from the changes made in 1995 to the Constitution, new and substantial possibilities opened up to reverse the situation of exclusion which had historically affected indigenous peoples. It notes that the special measures included the creation of Indigenous Municipal Districts (DMI), the implementation of which encountered difficulties, such as the discontinuous nature of indigenous lands; the dual frontiers between the political division of the State and indigenous lands, which has given rise to the overlapping of territories; the granting of title to community lands of origin, which has not always followed municipal limits and gives rise to incompatibilities between public ownership, private property and communal property, and the establishment of municipalities without considering their viability, combined with a centralized distribution of resources. The Committee hopes that the Government will examine the possible means of resolving this situation with the participation of the peoples concerned, and that it will keep the Committee informed on this subject.

7. Article 5. The values of indigenous peoples. The Committee notes that for the first time the Aymara has been accorded recognition of its religious practices under the terms of the regulations respecting religious practices, under the name of Religiosidad Milenaria Indígena de Amautas Kurmi-A. With reference to its previous direct request, the Government indicates that the sects which are active among indigenous peoples are controlled under the above regulations, which establish the obligation for religious associations to respect the multi-ethnic and pluricultural nature of the nation. The Committee would be grateful if the Government would keep it informed of any disputes of a religious nature which may have arisen due to the presence of these sects.

Consultation and participation

8. Article 6. The Committee notes that in the low lands, the consultation of indigenous peoples is carried out through their organizations and that various mechanisms have been used to hold consultations with the CIDOB. Please indicate the consultations held during the period covered by the next report with indigenous peoples in the low lands and the mechanisms used and the consultations held with indigenous peoples in the high lands. The Committee also notes that the rules governing debates in the Chamber of Deputies establish the obligation for Congressional Commissions to hold public consultation hearings with the sectors of the population directly concerned. Please indicate the consultations held in practice with indigenous peoples under these rules. In 2004, the Committee noted that the Government had provided the draft text of a Supreme Decree on "consultation and participation of indigenous peoples of origin - ILO Convention No. 169". The Committee emphasizes the need for an appropriate consultation procedure, which is the fundamental mechanism envisaged by the Convention to prevent and resolve any conflict of interests through dialogue and participation, and it requests information on developments relating to the above draft text.

9. Article 7. The Committee also notes that, according to the report, Act No. 2271 of 2004 respecting citizens’ groupings guarantees the recognition and participation of indigenous groupings and peoples in municipal, national and constitutional electoral processes and that, through their parties, 19 indigenous deputies were elected in 2002. The Committee would be grateful if the Government would continue providing information on this subject.

10. Impact studies. The Committee notes that no impact study has been undertaken on investments in productive and other types of infrastructure in indigenous areas and indigenous municipal districts. There is a significant void in this respect, as the processes of reviewing the TCOs are relatively recent and the DMIs have not achieved any real administrative or economic decentralization. The Committee would be grateful if the Government would keep it informed on the progress achieved and the difficulties encountered in this respect. With regard to the forestry and hydrocarbon management plans, the Committee notes the information supplied by the Government and refers to its observation of 2005.

Justice

11. Articles 8 to 10. The Committee notes that article 171 of the Constitution recognizes community justice and that section 28 of the Code of Penal Procedure provides that criminal prosecution is not applicable when the offence is committed within a community and is resolved in accordance with customary indigenous law, provided that the outcome is not contrary to the fundamental rights and guarantees set forth in the Constitution. The Committee would be grateful if the Government would provide examples of cases in which this provision has been applied. It notes that the Ombudsperson has contributed to facilitating access to justice by members of indigenous peoples. The Committee would be grateful if the Government would keep it informed of any developments in this respect. The Committee notes with interest the subprogramme on the training of higher-level practitioners of community justice in La Paz and requests information on this subject.

12. Article 11. Forced labour. In 2004 the Committee noted that the Government is working closely with the Office to implement effective measures to eradicate forced labour, the main victims of which are members of indigenous peoples. It notes the study "Trapped in debt bondage in Bolivia", undertaken by the programme to promote the ILO Declaration on Fundamental Principles and Rights at Work. The Committee notes that, according to the study, it is reported that there are 21,000 workers who are not free, with substantial differences in relation to the degree of intensity of forced labour to which they are subjected, and that the majority of those concerned are indigenous. One of the recommendations of the study was the ratification of the Forced Labour Convention, 1930 (No. 29). The Committee notes with interest that on 5 May 2005 Bolivia ratified Convention No. 29. In view of the above, the principal follow up of this subject will be carried out when examining reports on the application of Convention No. 29, even though certain specific aspects relating to indigenous peoples may continue to be examined within the context of Convention No. 169.

Lands

13. The report emphasizes that the system of land occupancy became destructured with the imposition of the individual ownership principle based on the model of European civil law. At the present time, two situations arise with regard to indigenous peoples and lands: (1) the communities which, during the process of the conquest, provided labour for mining, lost their lands; and (2) those who formed part of the so-called "colonial pact" managed to maintain their structures and beliefs, under which land ownership corresponds to the community, while its use corresponds to the family. It notes that, in accordance with Act No. 1715 respecting the National Agrarian Reform Service, the forms of land ownership are: rural lots, small properties, medium-sized properties, agricultural and stock-raising enterprises, community lands of origin and community or communal land. The first two and the last two correspond to indigenous peoples. The legislation distinguishes between two forms of collective ownership: community lands of origin and community ownership.

14. Procedures. The Committee notes that Act No. 1715 provides for the participation of the National Agrarian Reform Institute (INRA) and the MAIPO in the delimitation and granting of title to land, and that up to 2003 the INRA had recognized 159 claims, for which it had accorded title in 27 cases. The Government indicates that the majority of the Bolivian population is indigenous and that the lands claimed by indigenous organizations amount to 34 million hectares. The Committee, recalling the subject matter of the representation by the COB relating to the overlapping of forestry concessions and indigenous lands that were under review, reiterates the need to resolve this situation and requests the Government to provide information on the procedures and measures applied in practice to resolve these issues and prevent the same difficulties happening again.

15. Nomadic and itinerant peoples. In its previous direct request, the Committee requested information on the measures adopted to guarantee the right of the peoples concerned to use lands which are not exclusively occupied by them, but to which they have traditionally had access through their traditional and subsistence activities, with special reference to nomadic and itinerant peoples. The Committee notes that, according to the report, certain peoples are in this situation who are characterized by a mix between being itinerant and settled in formal communities, such as the Ayoreo people, who are cyclically itinerant, the Uru, Uro Murato and Puquina peoples, who stray into Aymara lands, the Tsimane people, the communities of the Leco people, and that the rights of incursion and use of lands are conditional upon the tolerance and consideration of the permanent occupants. The Committee requests the Government to consider the adoption of measures to give legislative expression to these rights, on which the survival of these peoples depends.

16. Natural resources. The Committee refers to the previous paragraphs and reiterates that Article 15 provides for consultation, even where the State retains ownership of natural resources, where they are located in indigenous lands as defined in Article 13 of the Convention, and that indigenous peoples have the right, wherever possible, to participate in the benefits of such activities. The Committee once again requests the Government to indicate: (a) any payment made in respect of the benefits gained from exploiting the natural resources of the subsoil of the traditional lands of indigenous communities; and (b) how these groups are compensated for any damages which they may sustain as a result of such activities.

17. Article 20. Recruitment and conditions of employment. The Committee also notes that the INRA Act incorporates wage earners in rural areas within the scope of the General Labour Act. However, as its regulations have not yet been adopted, these workers, who are almost all indigenous, are not yet in practice protected by the General Labour Act, but that a draft legislative text is being prepared on rural wage earners which is in the process of tripartite consultation. The Committee urges the Government to adopt adequate legislative measures to ensure the legal protection of indigenous workers and it would be grateful if the Government would keep it informed of any development in this respect.

18. Articles 21 to 23. Training. The Committee notes the establishment of the Universidad Pública El Alto in 2001 in a region mainly inhabited by the Aymara population, the efforts made to diversify and raise the educational and administrative level of normal higher intercultural bilingual education institutes, the specific projects carried out in Amazonia for the training of graduate teachers from indigenous communities and in the fields of ethno-tourism, craftwork and the management of flora and fauna. The Committee would be grateful if the Government would provide further information on the effect given to Article 22, paragraph 3, in fine, under which, where feasible, indigenous peoples shall progressively assume responsibility for the organization of the special training programmes required under Article 22, paragraph 2.

19. Articles 24 and 25. Social security and health. According to the Government’s report, there are 38 indigenous peoples, of which 80 per cent do not have health centres. The Government adds that, despite the establishment in 2001 of the basic indigenous health insurance scheme, the latter was not implemented as it was replaced by the Universal Maternal and Infant Insurance Scheme (SUMI). This scheme provides free medical care for pregnant women and children up to the age of five years, although in practice the system of short-term social security does not provide coverage to indigenous persons, even where they work for employers, due to the fact that work situations in rural areas are in their majority very precarious. The Committee also notes that, according to a recent study by the World Bank (Indigenous peoples, poverty and human development in Latin America: 1994-2004), health coverage in Bolivia amounts to 19 per cent, although the level for indigenous peoples is 12 per cent. The Committee expresses its concern at this situation and requests the Government to redouble its efforts to extend health coverage for indigenous peoples, organizing the services to the extent possible at the community level, and to keep it informed of the progress achieved and difficulties encountered.

20. The Committee notes that agreements have been concluded between peoples affiliated to the CIDOB and the Ministry of Health to incorporate and facilitate access to traditional indigenous medicine. The National Indigenous Health Council has also been established and operates in regions affiliated to the CIDOB. The Government also indicates that Ministerial Decision No. 0496, of 9 October 2001, promotes the inclusion of practices intended to respect the customs of indigenous women in the case of childbirth in hospitals. The Committee requests the Government to provide information on the extent to which effect is given to this provision and on the activities of the National Indigenous Health Council or of any other form of cooperation with indigenous peoples for the provision of health services, in accordance Article 25, paragraph 2, of the Convention.

21. Articles 26 to 28. Education. The Committee notes the information provided by the Government on the progress made in the design and preparation of curricula and the materials developed for this purpose. It also notes that education councils for peoples of origin are being established and that the Aymara and Quechua Councils are operating in the high lands, and the Amazonian Multi-ethnic and Guaraní Councils in the low lands. The Committee would be grateful if the Government would provide information on the operation in practice of these Councils.

22. The Committee notes from the World Bank study referred to above that the results of standard tests in schools were 12 per cent lower for indigenous children in relation to non-indigenous children. The study also indicates that the increase in average earnings for each additional year of schooling is lower for indigenous than non-indigenous persons. The Committee requests the Government to make efforts to provide education of equal quality to indigenous and non-indigenous children and to continue providing information on this subject.

23. Article 32. Contacts and cooperation across borders. The Committee notes that, according to the report, the Government has launched initiatives in the areas of the altiplano to promote cooperation in the various fields of development for the Aymara peoples of Bolivia, Chile and Peru. The first phase is confined to state action and a second phase will include the representation of indigenous peoples. Please provide information on the progress achieved in relation to these initiatives.

Part VIII of the report form. Considering that the Convention is fundamentally an instrument to promote dialogue and participation, the Committee wishes to remind the Government that this part of the report form for the Convention, approved by the Governing Body, indicates that, "although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application". Noting that the report was prepared by the Ministry of Labour, and that the MAIPO is the leading body in indigenous affairs, the Committee would be grateful if the Government would indicate whether this body or the Advisory Council of Indigenous Peoples and Peoples of Origin of Bolivia, participated in the preparation of the report and whether their participation is planned for the next report. The Committee also requests the Government to consider the possibility of consulting the principal indigenous organizations referred to by the Government for the preparation of its next report.