Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Bolivia (Plurinational State of) (Ratification: 1991)

1. The Committee notes the Government’s last report received in 1998, the analysis of which was postponed due to the examination of a representation. The Committee notes that this report does not contain replies to the matters raised by the Committee in its last direct request in 1995, nor information on the application of the Convention in practice. The Committee also notes that the Government has not yet provided information on the effect given to the recommendations made by a tripartite committee set up to examine a representation made by the Bolivian Central of Workers (COB) alleging non-compliance by the Government of Bolivia, with some provisions of the Convention, which were adopted by the Governing Body in March 1999 (document GB.274/16/7).

2. The allegations made by the COB referred principally to the administrative decisions of the National Forestry Superintendency granting 27 forestry concessions for a duration of 40 years, which can be renewed, and which overlap with six traditional indigenous territories, without any prior consultation. These areas are undergoing a process of review in order to determine the rights of third parties in their respect.

3. The tripartite committee concluded that, in view of the fact that the review of claimed land, of expropriations and of concessions for the exploitation of resources may directly affect the viability and interests of the indigenous peoples concerned, Article 15 of the Convention should be read in conjunction with Articles 6 and 7, and by ratifying the Convention, governments undertake to ensure that the indigenous communities concerned are consulted promptly and adequately on the extent and implications of exploration and exploitation activities, whether these are mining, oil or forestry activities.

4. It added that, as the lands for which the forestry concessions overlap have not yet been designated as community-held lands, it had not received any evidence indicating that such consultations, whether under Article 6(a) or Article 15, paragraph 2, of the Convention, had been carried out or whether provision had been made for the peoples concerned to participate wherever possible in the benefits of such activities.

5. The Governing Body accordingly requested the Government: (a) to supply detailed information to the Committee of Experts on the measures taken or envisaged to give effect to the provisions of the Convention referred to in the foregoing paragraphs; (b) to apply fully the provisions of Article 15 of the Convention and consider engaging in consultations in each particular case, especially when large tracts of land such as those referred to in the representation are affected, as well as environmental, cultural, social and spiritual impact studies, jointly with the peoples concerned, before authorizing the exploration and exploitation of natural resources in areas traditionally occupied by indigenous peoples; (c) to inform it of the process of reviewing title under way in the community-held lands and on the establishment or maintenance of the appropriate consultation procedures which must be carried out before undertaking any programme for the exploration or exploitation of natural resources, as provided by the Convention; (d) to inform it of the progress made in practice with regard to consultations with the peoples concerned, their participation wherever possible in the benefits of the concessions and their receipt of fair compensation for any damages which they may sustain as a result of this exploitation; and to pay special attention in its report to the specific situation of indigenous communities which would sustain a greater impact from the effects of forestry concessions in their territories; and (e) to request the complainants to inform the Committee of Experts whether they have availed themselves of the right to appeal to the Supreme Court of Justice and, if so, to inform it of the outcome, and concerning the appeal filed with the System for the Regulation of Renewable Natural Resources (SIRENARE).

6. The Committee hopes that the Government will provide in its next report the information indicated in the previous paragraph and that it will indicate in particular: (1) the measures adopted or envisaged to resolve the situations which gave rise to the representation, taking into account the need to establish an effective mechanism for prior consultation with the peoples concerned, as required by Articles 6 and 15 of the Convention, before undertaking any programme of exploration or exploitation of the resources pertaining to their land; (2) the progress achieved in practice with regard to the consultations held with the peoples located in the area in which the 27 forestry concessions overlap with the community-held lands, including information on the participation of these peoples in the use, management and conservation of these resources and in the benefits of forestry activities, as well as the granting to them of fair compensation for any damages which they may sustain as a result of the exploration and exploitation in the area; (3) the progress made in the process of reviewing and granting ownership title to the peoples concerned who inhabit the areas affected by the overlapping forestry concessions; and (4) the specific situation of indigenous groups inhabiting the area covered by the concessions. Please also provide information on any appeals lodged and any judicial or administrative decisions issued in such cases which are related to the problem examined in the representation. The Committee hopes that the Government will provide detailed information on these matters in its next report.

[The Government is asked to report in detail in 2003.]