Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 169) relative aux peuples indigènes et tribaux, 1989 - Honduras (Ratification: 1995)

Autre commentaire sur C169

Observation

Demande directe

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2021. It also notes the observations of the Honduran National Business Council (COHEP), received on 31 August 2021, and the Government’s reply.

Article 1 of the Convention. Peoples covered by the Convention. In reply to its previous comments, the Committee notes the detailed information provided by the Government on the population stating that it belongs to one of the nine indigenous and Afro-Honduran peoples (Garifuna, Lenca, Maya, Chorti, Misquito, Nahoa, English-speaking Afro-Honduran, Pech, Tawahka and Tolupan), disaggregated by sex, department, occupation and educational level. The Committee observes that this information is compiled by the National Social Sector Information Centre which, according to the information available on its official website, also compiles data on the type of housing, educational level, occupation, access to water and reading and writing skills of indigenous and Afro-Honduran peoples. The Committee welcomes the efforts made to collect this data, and encourages the Government to continue compiling and updating information on the social, economic and educational situation of indigenous and Afro-Honduran peoples, which helps to guide public policies aimed at indigenous and Afro-Honduran peoples, and evaluate their impact.

Articles 2 and 33. Coordinated and systematic action. In its previous comments, the Committee noted that the Department of Indigenous and Afro-Honduran Peoples (DINAFROH) had developed an action plan for the application of the public policy against racism and racial discrimination for the comprehensive development of indigenous and Afro-Honduran peoples (P-PIAH), which includes six sets of rights: social and political participation; the right to education; the right to health; the right to ancestral heritage resources; the right to land, territory and natural resources; and customary law.

The Committee notes the information provided by the Government regarding the measures taken to ensure that members of indigenous and Afro-Honduran peoples are able to register as participants eligible for the benefits of social programmes, in particular the Bono Vida Mejor programme. This programme involves the periodic provision of cash transfers conditional on the fulfilment of education co-responsibilities for pre-school and primary school children. The Committee welcomes the measures aimed at facilitating understanding, acceptance and participation of indigenous and Afro-Honduran peoples in the programme through: the adoption of a protocol for access and assistance for indigenous and Afro-Honduran communities to the Bono Vida Mejor programme; the implementation of outreach processes and community assemblies; the provision of support for local authorities and leaders; and the development of promotional materials on the cultural and linguistic diversity of the peoples.

The Committee observes that, in its observations, the ITUC indicates that in general, indigenous and Afro-Honduran peoples continue to suffer poor health, education and housing conditions, and the socio-economic gap persists between them and other members of the national community.

The Committee requests the Government to provide information on the evaluation of the six pillars of the P-PIAH, and to indicate whether the objectives established in the action plan for its implementation have been achieved, the results achieved and obstacles identified. The Committee requests the Government to indicate the manner in which the representatives of indigenous and Afro-Honduran peoples have participated in the P-PIAH monitoring and evaluation process. The Committee also requests the Government to indicate the manner in which DINAFROH, the body responsible for providing support and implementing the P-PIAH, performs its role, and to specify the coordination mechanisms established with the other competent institutions regarding the rights of indigenous and Afro-Honduran peoples. Recalling the Government’s indication that developing an institutional definition of the DINAFROH was challenging, the Committee requests the Government to report on the competences and responsibilities determined for the DINAFROH, and the resources allocated to it.

Articles 8 and 12. Access to justice. In reply to the request for information on measures taken to reinforce access to justice for indigenous and Afro-Honduran peoples and to train actors in the judicial system on the individual and collective rights of indigenous and Afro-Honduran peoples, the Government indicates that the Prevention and Context Analysis Unit attached to the Secretariat for Human Rights has held 43 training sessions on the Act for the protection of human rights defenders, journalists, social communicators and actors in the justice system, attended by 814 individuals, including human rights defenders and defenders of indigenous communities and the Garifuna people. It also indicates that the DINAFROH holds various meetings and organizes training sessions with and for members of indigenous and Afro-Honduran peoples, and promotes and facilitates participatory processes, the provision of advice and technical support in human rights and development to enable indigenous and Afro-Honduran peoples to develop tools that facilitate the follow-up of complaints submitted to the competent authorities and the resulting cases.

The Committee also notes the information available on the website of the Public Prosecutor’s Office, according to which a new office of the Special Prosecutor for Ethnic Groups and Cultural Heritage was inaugurated in the city of Tela in the Caribbean part of the country, which will contribute to improving access to the justice system for members of the Garifuna, Misquito, Tolupán, Pech, Tawahka and isleño (black ethnic island dwellers) ethnic groups. It also notes the adoption of a Protocol on prosecution regarding indigenous and Afro-Honduran peoples, which aims to establish uniform guidelines for the investigation and processing of complaints relating to violations of the rights of indigenous peoples. The Committee observes that, in its 2020 Annual Report, the National Commission for Human Rights (CONADEH), indicates the need to strengthen and provide the necessary resources to the Office of the Special Prosecutor for Ethnic Groups and Cultural and the DINAFROH to respond to the needs of indigenous and Afro-Honduran peoples with regard to access to justice, the protection of lands and natural resources, and other rights.

Referring also to the comments in its observation on the acts of violence and threats against members and leaders of indigenous and Afro-Honduran peoples, and the requests relating to their lands (see below), the Committee requests the Government to continue taking measures to ensure that members of indigenous and Afro-Honduran peoples and their representative bodies have access to legal proceedings and other mechanisms to enable them to assert their rights and obtain compensation in the event of violations. The Committee also requests the Government to continue providing information on the action taken to raise awareness among and train members of indigenous and Afro-Honduran peoples and their representatives about their rights.

Article 14. Land. In its previous comments, the Committee welcomed the efforts made regarding the land titles granted to twelve Mosquitia territorial councils by the National Agrarian Institute (INA). It observed, however, that although between 1993 and 2019, 517 titles had been granted to indigenous and Afro-Honduran peoples, in recent years, the number of titles granted had decreased (one title a year in 2017, 2018 and 2019). The Committee also observed that, in its concluding observations of 2019, the United Nations Committee on the Elimination of Racial Discrimination, the Inter-American Commission on Human Rights (IACHR) in its 2019 report on the human rights situation in Honduras, emphasized that the issue of demarcation, titles and clarification of the land rights of indigenous and Afro-Honduran peoples and their occupation by third parties was resulting in complaints and social conflict. The Committee requested the Government to provide information on the progress made in the process of clarifying and granting land title for indigenous and Afro-Honduran peoples and on the claims submitted in this regard.

The Committee observes, according to the information provided by the Government, that: in 2019, title to an area of 124 hectares was granted to the La Cuchilla Lenca community; in 2020, no titles were granted; and in 2021, title to an area of 29 hectares was granted to the Nuevo Amanecer 28 Mayo Lenca community. It also notes the action taken to clarify and grant land title to the Garifuna community in El Triunfo de la Cruz and Punta Piedra, occupied by third parties, and regarding which the Inter-American Court of Human Rights had handed down decisions in 2015. It observes the Government’s indication that there are various obstacles in this regard, and that in the case of the lands of the Punta Piedra community, the residents did not allow the entry of technical appraisers.

The Committee also observes that, in another case relating to land title, the Inter-American Commission on Human Rights (IACHR), in its substantive review, concluded that no land title for the entire territory of the Garifuna community of San Juan had been granted by the Government, including failures to ensure peaceful ownership and possession and non-interference by third parties (Case No. 12.949).

The Committee requests the Government to step up its efforts to ensure the effective protection of the rights of ownership and possession of the indigenous and Afro-Honduran peoples to the lands that they traditionally occupy. The Committee urges the Government to continue its efforts to make progress in the process of clarifying and granting land title, and to provide information in this regard. The Committee reiterates its request for detailed information on the pending land claims filed by indigenous and Afro-Honduran peoples, and on the measures taken to resolve the conflicts that have arisen due to the encroachment of third parties onto their lands.

Articles 7 and 15. Participation in environmental impact studies. The Government previously indicated that to begin any programme for the exploration or exploitation of resources in zones considered to be “areas of environmental fragility” or “protected areas”, an environmental impact study must be undertaken. The Government indicated that the territory of indigenous areas is deemed to fall under these categories (Regulation of the National Environmental Impact Assessment System (SINEIA)). The environmental study must be deposited in locations established by the General Directorate for Environmental Assessment and Control (DECA) for public consultation and subsequent review and approval by the DECA. The Government added that, taking into account the environmental conditions and significance of the project, works or activity, the Secretariat of State in the Ministry of the Environment shall have the power to call a hearing or public forum for the open discussion of the project, without distinction between indigenous peoples and the non-indigenous population.

The Committee recalls that, in accordance with Article 7 of the Convention, Governments shall ensure that, whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The Committee reiterates its previous request to the Government to provide information, with specific examples, on how the cooperation of indigenous and Afro-Honduran peoples is secured in practice for the assessment of the social, spiritual, cultural and environmental impact of development activities planned in their lands.

Consultation and natural resources. The Committee notes the Government’s indication that the right to participation and consultation is one of the main challenges in relation to indigenous and Afro-Honduran peoples. It is therefore necessary to establish mechanisms to guarantee the participation and effective consultation of indigenous and Afro-Honduran peoples regarding activities related to the use of natural resources in the areas where these peoples are settled. It indicates that so far, municipal offices have organized open forums in which they put forward projects for the exploitation of existing resources in the lands of indigenous and Afro-Honduran peoples, and that these peoples do not recognize the open forums as a consultation process within the meaning of the Convention. The Misquito people developed the Biocultural Protocol for the Consultation of the Misquito People, which was recognized by the Secretariat of Natural Resources and the Environment as the only consultation protocol in Misquito territories. The Government indicates that, for any project to be developed concerning the Misquito people, and in accordance with the SINEIA Regulation, this instrument shall be used for consultation. It indicates that the Lenca people is also finalizing a protocol for the consultation of the Lenca people. The Committee refers to the comments made in its observation on the importance of adopting a regulatory framework for consultation with all the peoples covered by the Convention, and requests the Government to communicate information on the procedures established to consult indigenous and Afro-Honduran peoples, with a view to ascertaining whether and to what extent their interests would be prejudiced, before undertaking or authorizing any programmes for the exploration or exploitation of existing resources pertaining to their lands, in accordance with Article 15 of the Convention. The Committee also requests the Government to supply information on the consultations held within the framework of the Biocultural Protocol for the Consultation of the Misquito People.

Mining activities. In its previous comments, the Committee requested the Government to take into account the provisions of Article 15 of the Convention in the revision process of the General Mining Act. The Committee noted that the Constitutional Chamber of the Supreme Court of Justice had found several sections of the General Mining Act to be unconstitutional, including section 67, under which, prior to adopting a decision to grant an exploitation concession, the mining authority must request the municipal corporation and the population to hold a citizens consultation within no more than six days. It also noted the Government’s indication that, in this context, Honduran Institute of Geology and Mines had refrained from granting mining concession rights for exploitation.

The Government indicates that, pursuant to Decree No. 109-2019 of 25 November 2019, section 67-A was included in the Mining Act, under which, prior to the application for the exploitation stage, when the exploration results are submitted and prior to the decision to grant an exploitation concession, the mining authority shall request the municipal corporation to hold a public consultation (open forum) in the area affected by the specific project. The decision taken in the consultations is binding for the granting of the exploitation concession. The Committee notes with interest that, in the case of projects to be developed in the lands of indigenous and Afro-Honduran peoples, the section provides that prior, free and informed consultations shall be carried out in accordance with Convention No. 169 and/or the special national legislation adopted for this purpose. The Committee requests the Government to provide information on the processes of consultations held with indigenous and Afro-Honduran peoples under section 67-A of the General Mining Act prior to the granting of a concession for exploitation, in order to determine whether and to what extent the interests of these peoples would be prejudiced.

The Committee also notes the Government’s indication that, in the application process for mining permits at the exploration stage, public consultations are not held, as there is a stage for the verification of the area and a period during which opposition can be expressed to the application. During the verification stage, the land registry agent must verify whether the area is located within an exclusion zone. The Government explains that exclusion zones include all sectors or areas occupied by indigenous and Afro-Honduran peoples, in accordance with section 48 of the General Mining Act. In this regard, the Committee observes that section 48 lists the mining rights exclusion zones for which the mining authority cannot grant mining rights without including an explicit reference to the land traditionally occupied by indigenous and Afro-Honduran peoples. The Committee requests the Government to provide clarifications in this respect.

Article 28. Education. The Committee welcomes the detailed information provided by the Government in reply to its comments on the actions undertaken by the General Directorate of Education for Indigenous and Afro-Honduran Peoples (SDGEPIAH) to develop bilingual intercultural education in indigenous and Afro-Honduran communities, and to retain children in schools. It notes in particular the production, in each of the languages of indigenous and Afro-Honduran peoples, of curricular tools adapted to the world vision of these peoples, in the areas of language, science and mathematics; the training of indigenous teachers; the development in 2019, 2020 and 2021 of three diploma courses for trainers of trainers in multicultural techniques and methodologies in intercultural and bilingual education; the construction of several schools in various departments of the country; the provision of books and educational materials with cultural content; and the implementation of end-of-year tests in the mother tongues of indigenous and Afro-Honduran peoples.

The Committee observes that, according to information available on the CENISS website, 69.46 per cent of the indigenous and Afro-Honduran population said that they had only completed primary school, 13.39 per cent had no educational level, 12 per cent had completed secondary education, 3.15 per cent had only attended pre-school, and 2.07 per cent had reached higher, non-university higher or postgraduate education.

The Committee encourages the Government to continue taking measures to guarantee that members of indigenous and Afro-Honduran peoples have access to education at all levels, and to continue implementing bilingual intercultural education, in cooperation with these peoples. It also requests the Government to continue providing updated information on the education situation of indigenous and Afro-Honduran peoples.

[The Government is asked to reply in full to the present comments in 2023.]