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Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Ecuador (RATIFICATION: 1998)

Coordinated and systematic policy

1. Articles 2 and 33 of the Convention. The Committee notes with interest the work carried out by the Council for the Development of the Nationalities and Peoples of Ecuador (CODEMPE), the Council for Afro-Ecuadorian Peoples (CODAE) and the Institute for Amazonian Regional Eco-development (ECORAE), registered with the Office of the President of the Republic and directly associated with the development of the indigenous, Afro-Ecuadorian and Amazonian peoples of Ecuador, with a view to promoting, structuring and implementing the Project for the Development of Indigenous and Black Peoples in Ecuador (PRODEPINE). The Committee notes the mid-term evaluation of the project provided by the Government and that, in the context of the project, the implementation of the component relating to the legalization of land title was promoted in association with the National Agrarian Development Institute (INDA) and the Ministry of the Environment (MAE) through the Operational Convention for the Legalization, Adjudication and Titularization of Lands in Ecuador, which has been implemented in full. 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 and, therefore, requests the Government to pursue its efforts for the continuation of PRODEPINE and for its conversion into a government programme.

2. Measures adopted to give effect to the provisions of the Convention including, where appropriate, legislative measures. The Committee notes the obstacles encountered in the National Congress in the adoption of national laws ensuring compliance with the rights of the indigenous and Afro-Ecuadorian peoples of the country, and particularly for the approval of the Act for the exercise of the collective rights of indigenous peoples and the Organic Act respecting the public institutions of the nationalities and peoples of Ecuador. The Committee invites the Government to continue its efforts towards the adoption of legislation necessary to apply the Convention. The Committee would be grateful if the Government would keep it informed of the progress made in relation to the draft legislation debated in Congress and on any other texts submitted for adoption.

3. Operational Action Plan, 1999-2003. The Committee notes the Government’s indication that no progress has yet been made in the establishment of the commission for the implementation of the Operational Action Plan, 1999‑2003 on the rights of indigenous nationalities and peoples in Ecuador, but that it undertakes to take the necessary measures subsequently. The Committee trusts that the Government will provide information on progress made in this regard with its next report.

Consultation and participation

4. Articles 6 and 7. The Committee notes the mid-term evaluation of PRODEPINE which, among its positive aspects, emphasizes the following: its objectives are highly relevant in responding to the priorities determined in analyses of indigenous and Afro-Ecuadorian peoples; it has made a very effective contribution to establishing an operational structure at the national level for participatory planning, consolidation and empowerment of the organizations of these peoples and the implementation of 152 development plans. With regard to the negative findings, it indicates that the beneficiaries of the project are aware of the existence of pressure of a political nature and the lack of training of the organizations to report to the communities and the State, which reduce the effectiveness of its implementation. Moreover, although the project has supported the preservation and conservation of the environment, it is not clear that the management plans issued are being complied with as the communities require further training to be able to do so. The Committee hopes that the Government will provide information in its next report on the national policies and measures adopted to remedy the negative aspects reported in the evaluation, and it requests the Government to provide a copy of the final evaluation of the project.

Administration of justice

5. Articles 8 to 10. The Committee notes the information provided by the National Council for Children and Young Persons indicating that the instructions on the administration of justice in relation to young persons from indigenous or tribal communities have not yet been finalized by the Government. The Committee notes with interest that the above noted Council is working on the development of an agenda “for the development of a minimum agenda in support of the rights of indigenous girls, boys and young persons in Ecuador, organized by the Confederation of Peoples of Kichwa Nationality of Ecuador, the Indigenous Parliament of America, the National Directorate of Intercultural Bilingual Education and the United Nations Children’s Fund”. The Committee asks to be kept informed of the progress and outcome of the planned agenda. The Committee notes the draft Bill on the administration of indigenous justice, of April 2002, the objective of which is to make the administration of justice by judicial institutions compatible with the judicial functions of the authorities of peoples who identify themselves as being of indigenous nationalities. The Committee asks to be kept informed of progress in relation to this draft Bill and any other progress achieved in giving effect to article 191 of the Constitution, which provides that the authorities of indigenous peoples shall exercise functions for the administration of justice, applying their own standards and procedures for the resolution of internal disputes in accordance with their customs or customary law, provided that they are not contrary to the Constitution and laws, and that the law shall make such functions compatible with those of the national judicial system.

Land

6. Article 14. The Committee notes with interest that, in accordance with the Operational Convention for the Legalization, Adjudication and Titularization of Lands in Ecuador, 251,044 hectares have been adjudicated and titularized in the Provinces of Esmerelda, Sucumbios, Napo, Orellana, Pastaza, Carchi, Imbabura and Morona Santiago; 101 property titles duly formalized and entered into the property registers of the respective cantons have been issued, benefiting 2,660 families with a population of 13,989 indigenous and Negro persons. The Committee further notes that land adjudication and titularization will take place under the terms of different laws, administrative resolutions and inter-institutional agreements (including section 38 of the Agrarian Development Act, administrative resolution No. 002 of May 2002 determining the parameters for establishing ancestral ownership, the agreement concluded between the INDA and the MAE for the approval of integrated management plans in adjudication processes). The Committee requests the Government to provide information on the procedures adopted for the implementation of the process of prior consultation set out in Article 6 of the Convention in relation to these legislative and administrative measures which are liable to affect the indigenous and tribal peoples involved and hopes that it will apply the consultative provisions of the Convention in this respect.

7. Lands which have not been delimited. The Committee recalls that the Convention affords protection not only to lands for which the peoples concerned already hold title of ownership, but also lands which they traditionally occupy. It also recalls that under the terms of the Convention, governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession (Article 14, paragraph 2). In this respect, the provisions in the Convention which address the issue of land, and particularly Articles 13 and 14, have to be interpreted in the framework of the general policy provided for in Article 2, paragraph 1, of the Convention, under the terms of which governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity. Furthermore, in practice these provisions need to be articulated with Article 6 of the Convention, which provides that consultations have to be carried out with the peoples concerned in good faith and in a form appropriate to the circumstances, and that governments shall establish means by which these peoples can freely participate in the adoption of decisions on matters which may concern them. The Committee trusts that in its next report the Government will be in a position to provide information on the total area of lands occupied by Negro and indigenous communities which have not yet been delimited and titularized and on programmes or projects that are being implemented or are planned to complete these operations. It also requests information on whether consultation bodies exist with indigenous peoples and Negro communities for the design, monitoring and evaluation of the implementation of such programmes and projects.

8. Declaration of public utility. The Committee requests the Government to continue providing information in future reports on cases in which, under the terms of article 84(2) of the Constitution, the State declares community lands of indigenous and Afro-Ecuadorian peoples to be of public utility. It also requests the Government to continue providing information on the procedures and manner in which the views of the peoples concerned are sought and taken into account.

9. Rural programme. With reference to point 18 of its previous direct request, the Committee notes that the INDA is developing the Programme for the Regularization and Administration of Rural Lands (MAG-INDA Agreement). The Committee requests the Government to provide information in its next report on the manner in which effect is given to Articles 6, 7, 14 and 19 in the context of the rural programme and to provide a copy of the relevant texts.

Natural resources and consultation

10. Article 15. With reference to point 12 of its previous direct request, the Committee recalls that in accordance with Article 13, paragraph 2, of the Convention, the “use of the term ‘lands’ in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use”. It once again requests the Government to provide information on the manner in which the rights set forth in article 84(4) and (5) of the Constitution are exercised in practice relating to the participation of indigenous peoples in the use, exploitation, management and conservation of renewable natural resources pertaining to their lands, as well as on the consultation of these peoples concerning plans and programmes of exploration and exploitation of non-renewable resources which may affect their environment and culture. It also requests the Government to take the necessary measures to provide information on the application of this provision in relation to the indigenous communities residing in the Yasuní National Park and on the lands that were assigned to the Huaoraní people in 1990.

11. Cubayeno-Imuya. The Committee notes the indications provided by the Ministry of Energy and Mines in response to the request for information by the Committee in point 13 of its last direct request. The Committee notes with interest that since the declaration of the area known as Cubayeno-Imuya as an untouchable conservation area prohibited for any type of extractive activity, there have been no oil exploration or mining activities pursuant to Executive Decrees Nos. 551 and 552 of 29 January 1999. The Committee notes that the records of the Ministry of Energy and Mines do not contain complaints relating to violations of these Decrees with reference to oil exploration and mining operations. The Committee requests information on the existence of any complaints of violations of other aspects of the above Decrees, as well as any complaints of violations of the Decrees lodged with other government bodies or with the judicial authorities and on the action taken thereon.

12. The Cofanes, Siona and Secoya peoples. The Committee notes the reply by the Ministry of Energy and Mines indicating that the information requested in the previous comment on whether the above Decrees have benefited the Cofanes, Siona and Secoya peoples can only be supplied by the peoples concerned. The Committee recalls that the Convention not only recognizes the rights of indigenous and tribal peoples, but also establishes obligations for States (see Articles 2, 4 and 7). The Committee trusts that the Government will provide information on the impact in practice of the above Decrees.

13. Block 23. With reference to point 14 of its previous direct request, the Committee notes the information supplied by the Ministry of Energy and Mines indicating that the share agreement concluded by the CGC and the Ecuadorian State for the exploitation and production of Block 23 has been suspended since 9 April 1999, when a state of force majeure was declared, and that no oil exploration activities have been undertaken since then. The Government indicates that the environmental impact study provided for in the relevant legislation has been approved. The Committee recalls that the carrying out by the Government of environmental impact studies does not replace the consultations envisaged in Article 15, paragraph 2, of the Convention. This provision establishes that “governments shall establish or maintain procedures through which they shall consult with these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands”. As the Committee has indicated in similar cases, when establishing or maintaining such procedures, governments should take into account the procedural requirements set out in Article 6 of the Convention and the provisions of Article 7 of the Convention, under the terms of which, among other aspects, “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 results of these studies shall be considered as a fundamental criteria for the implementation of these activities.” The Committee, therefore, requests the Government to hold consultations with the peoples concerned, taking into account the procedure established in Article 6 of the Convention, to ascertain whether and to what degree their interests would be prejudiced, as set out in Article 15, paragraph 2, of the Convention, and to examine, where possible, the carrying out of the studies envisaged in Article 7 of the Convention in cooperation with the peoples concerned. The Committee requests the Government to provide detailed information on this matter with its next report.

14. Kichwa de Sarayuka “Tayjasaruta” people. The Committee notes the Government’s indication that the application made by the Governing Council of the Kichwa de Sarayuka “Tayjasaruta” people and other communities in the area in November 2002 to the Ecuadorian authorities rejecting the opening of oil wells on their lands has given rise to international legal action at the level of the Inter-American Court of Human Rights, which ordered interim measures that are being applied. The Committee requests the Government to supply information on the action taken to give effect to the interim measures ordered by the Inter-American Court of Human Rights, and the manner in which the rights of consultation and participation, provided for in Articles 6, 7 and 15 of the Convention, are applied in giving effect to such measures, as well as on developments relating to the case. The Committee once again requests the Government to provide information on the manner in which effect is given to Article 14 in the lands of the Sarayuka community.

15. Article 18. With reference to point 17 of its previous direct request, the Committee trusts that the Government will be in a position in its next report to provide information on the action taken against intrusions into lands that are owned or used by indigenous communities during the period covered by the report, and any related rulings and sanctions. The Committee recalls, as it has on other occasions, that the obligation to hold consultations, as set out in Article 15, paragraph 2, rests on the State. The Committee requests the Government to provide information on the procedures adopted or envisaged to comply with this obligation prior to the conclusion of share agreements or the provision of services which affect the environment of the areas occupied by the communities or peoples concerned.

16. Article 20, paragraph 3(a), (b) and (c). The Committee once again requests the Government to take the necessary measures so that it can provide information in its next report on the application of the above provisions, particularly including statistics on the internal migration of indigenous persons.

17. Articles 4 and 20 to 23. With reference to points 3, 19, 20 and 21 of its previous direct request, the Committee notes that the Government has formulated and will shortly implement the project “Labour Integration of Indigenous Peoples”, the objective of which is to give effect to all the provisions of Convention No. 169 and that in the context of its implementation, it is planned to establish an Indigenous Assistance Centre. The Committee also notes that the Government plans to implement a National Labour Integration Programme based on alternative development plans established by these people, which will include them as actors in the social and economic development of the country. The Committee requests the Government to keep it informed of progress regarding these initiatives and on their results.

18. Articles 24 and 25 (social security and health) and 26 to 29 (education). The Committee notes the information and statistical data provided by the Government in relation to points 22, 23 and 24 of its previous direct request. It hopes that the Government will continue to provide information in this respect.

19. Article 32. Contacts and cooperation across borders. With reference to point 25 of its previous direct request, the Committee notes with interest the information provided by the Government on the various projects and initiatives carried out in the context of the Bi-national Plan which arose out of the Broad Ecuadorian-Peruvian Integration Agreement. The Committee would be grateful if the Government would provide information on the manner in which the provisions set out in the Convention are applied in the implementation of the projects and initiatives of the Bi-national Plan.

20. Judicial activities and decisions. The Committee notes the Government’s indication that it has no knowledge of court decisions issued on matters of principle relating to the application of the Convention. It also notes the Government’s indication that it is awaiting the information requested from the High Courts of Justice of the Provinces of Sucumbios and Orellano on an appeal lodged with the High Court of Justice of Nueva Loja relating to severe pollution caused by the oil-related activities of the company Texaco, which are alleged to have caused cancer, miscarriages and respiratory problems among the members of local communities. The Committee requests the Government to continue providing information in future reports on any judicial decisions handed down, and to supply the texts of such decisions, particularly in relation to the above appeal.