Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Colombia (Ratification: 1991)

1. The Committee notes the detailed information provided in the Government’s reports, and the numerous annexes attached. The Committee also refers to its observation.

2. Article 2 of the Convention. The Committee notes the information provided by the Government on the areas which have benefited from the economic resources granted to resguardos since 1994. It also notes that allocations have been governed since 2001 by Act No. 715. The Committee would be grateful if the Government would describe in its next report practical examples of some of the projects carried out with these resources and the manner in which indigenous communities were consulted and participated in their formulation, implementation and evaluation. It also requests the Government to indicate whether the resources allocated under the new Act respecting reservations are equal, lower or higher than those provided for in the previous legislation.

3. Article 7. With regard to the policy concerning the prior consultation of indigenous communities on matters relating to environmental management, the Committee notes the practical example mentioned concerning the consultation of the communities of the Wayuu ethnic group and trusts that the Government will continue to provide information in future reports on the activities of the General Directorate of Indian Affairs (DGAI).

4. The Committee notes the information provided by the Government on the current situation of the Cristianía indigenous community. The Committee would be grateful if the Government would continue to provide information on the regular maintenance of surface drainage (zanjas) which, according to the Government, should be agreed upon between the resguardo and the authority responsible for the maintenance of thoroughfares. It also requests the Government to send once again the photographic register of the situation of this indigenous resguardo, which was not received with its report.

5. The Committee notes the Government’s request for a clarification of its request for information concerning the ruling by the Constitutional Court in case No. T12559. In this respect, the Committee refers to the second paragraph of point 11 of its direct request in 1995, in which it noted that legislation to allow "popular action" (acción popular) to be used to protect environmental rights was under consideration and referred to the right of indigenous communities to environmental protection by actions to impose guardianship) (acciones de tutela) in case No. T-12559 (decision No. T-405, of 23 September 1993) concerning the installation of a joint North American/Colombian military base in the territory of the resguardo of Monochoa, home of the Huitoto and Muinane peoples, which allegedly violated Articles 6 and 7 of the Convention, and in which the Constitutional Court ordered the establishment of a permanent oversight committee including representatives from the affected communities to prepare an environmental management plan, including studies and analysis. The Committee trusts that the Government will provide detailed information in its next report on the establishment and activities of the above permanent oversight committee.

6. The Committee once again requests the Government to provide copies of administrative or judicial decisions relating to compensation granted to indigenous communities affected by mining activities.

7. Article 8. The Committee notes that the First Committee of the Chamber of Representatives decided to shelve a Bill submitted by an indigenous Senator in November 2000 to coordinate the ordinary legal system with the special indigenous legal system. Reiterating a previous request, the Committee asks the Government to provide information on developments relating to another Bill on the same subject prepared by an inter-institutional group.

8. Article 10. The Committee notes with interest section 33 of the new Penal Code and ruling No. C-370-02 of the Constitutional Court of 14 May 2002, which refer to the absence of imputability on grounds of the socio-cultural diversity deriving from the different cosmic vision of indigenous peoples. The Committee would be grateful if the Government would provide copies of court decisions based on these texts.

9. Article 11. With reference to its previous comments concerning the employment of children, the Government indicates in its report that the application of the Young Persons Code in Colombia is the joint responsibility of state institutions, for which they have administrative, technical, financial and human resources. It adds that an Inter-institutional Committee on Child Labour covers the specific situation of children who work. The Committee would be grateful if the Government would supplement the information provided by indicating whether the inspectors of the Special Labour Relations Department have provided information on this issue and supply statistics on the number of young indigenous persons under contract in employment, classified by sex and age group.

10. Article 14. The Committee notes that the Bill to issue basic territorial planning legislation is still being examined by the Congress. The Committee notes that the Bill was formulated with the participation of state institutions, as well as representatives of indigenous, black and gypsy communities. The Government adds that, with a view to publicizing the legislation and gathering opinions from the various sectors affected, workshops were held which helped to consolidate the final version of the Bill through contributions and initiatives from the various regions of the country. The Committee also notes that in May 2001 at the Permanent Dialogue Round Table the process of formulating the Bill was completed and that it took into account to a large extent the suggestions made by the representatives of the indigenous communities. The Committee requests the Government to provide a copy of the Act when it has been adopted.

11. The Committee notes the Government’s indication that an extension of 954,480 hectares has been granted to the territory of the resguardo of the Nukak-Maku indigenous communities, which was 632,160 hectares. The Committee would be grateful if the Government would keep it informed of any further special measures adopted for the benefit of this nomadic group.

12. The Government indicates in its report that disputed land claims, where they are between settlers and indigenous groups, are addressed through processes of dialogue, with the participation in many cases of the Ombudsman of the People and the Office of the Attorney-General through delegates for agrarian and ethnic affairs. The Committee notes that through these processes of dialogue, the collective lands of the indigenous and black communities in the Chocó Biogeográfico area have been legalized. It also notes the Government’s indication that section 85 of Agrarian Reform Act No. 160 of 1994 lays down the obligation of the Colombian Agrarian Reform Institute (INCORA) to safeguard the integrity of resguardos which have been occupied by persons foreign to them. Finally, the Committee notes that the Government has not received claims arising out of the juxtaposition of the hunting and fishing rights of different indigenous communities within the same territory.

13. Article 15. The Committee notes with interest the adoption of Act No. 685 in 2001 issuing the Mining Code. The Committee notes in particular that, in accordance with the Mining Code, any proposal by private entities to explore and exploit minerals within indigenous mining areas shall be resolved with the participation of the representatives of the respective indigenous communities; that the authorities of these same communities shall determine the manner in which the benefits are distributed; that once the concession has been adjudicated, the community may issue contracts for the whole or part of the work with third parties, but that the concession may in no case be transferred; that the indigenous authority may indicate within the mining area those places which may not be subject to mining exploration or exploitation by reason of their special cultural, social or economic significance for the community in accordance with their beliefs, practices and customs; and that where persons outside the indigenous community or group obtain rights for exploration and exploitation within indigenous mining areas they shall preferably include the community or group in their operations and processes and train their members to give effect to this preference. Finally, the Committee notes that, by virtue of section 129 of the Mining Code, municipalities which perceive benefits or shares from mining exploitations located on indigenous lands shall allocate the corresponding funds to works or services directly benefiting the aboriginal communities and groups settled on such lands. The Committee requests the Government to provide information on the criteria applied in practice for the granting of concessions for extraction and exploration in indigenous areas, and requests it to indicate the extent to which in practice indigenous authorities seek authorization for the exploration and exploitation of resources in their lands. Finally, the Committee reiterates its previous request for the Government to provide information on the manner in which indigenous peoples participate in the benefits in cases where the exploitation of resources is in the hands of third parties.

14. With reference to its previous observation, the Committee notes the copy provided by the Government of Decision No. 0564, of 26 June 1998, of the Ministry of the Environment refusing an application for an environmental licence for Mineros El Dorado S.A. for the exploitation and appropriation of certain gold-bearing deposits in a region occupied by various indigenous communities.

15. In its previous comments, the Committee requested the Government to provide information on any special measure adopted or envisaged to strengthen the economic basis of indigenous communities for the use, management and conservation of all the natural resources within their territory. The Committee notes the information provided by the Government indicating that in recent years it has made an investment of 124,321 million Colombian pesos and that it has adapted environmental standards to the traditional systems of production of indigenous communities. It also notes that programmes have been launched, in consultation with indigenous communities, for the conservation and recuperation of national parks, plains and small valleys, agriculture and stock-raising, support for the subsistence plans of communities, the definition of special management areas and consultation concerning development plans. The Committee would be grateful if the Government would continue to provide information on the impact of these programmes in terms of improving the living conditions in the various resguardos.

16. The Committee notes with interest the publication of the project entitled "Investigation for the development of a proposal to protect traditional knowledge within the context of access to genetic resources", financed by the Ministry of the Environment, which was accompanied by a report. It also notes with interest the various publications provided by the Government on the policies developed and activities undertaken for social participation in the conservation of the national parks in Colombia. The Committee once again requests the Government to provide information on the progress achieved in the adoption of the draft legislation and regulations on biodiversity, which include mechanisms to secure indigenous communities the benefits of the use of their traditional knowledge in this field.

17. Article 16. The Government indicates that in the event of the forced displacement of indigenous communities by third parties, an inter-institutional approach is adopted to achieve their return. The Committee requests the Government to provide information in its next report on recent cases in which it has been necessary to make use of these procedures to facilitate the return of such communities to their traditional lands.

18. Article 19. With reference to its previous request, the Committee notes the information provided by the Government in its report that representatives of indigenous communities participate in the credit committees of the World Food Programme (WFP) at both the national and regional levels. It also notes that the projects supported by the WFP are related to the financing of enterprises in the fields of mining, agriculture, stock-raising, fisheries and artisanal agriculture in relation to all their commercial aspects. With regard to the information requested on the application in practice of Act No. 160 of 1994, establishing the national system of agrarian reform, the Committee notes the Government’s indication that through INCORA legal recognition has been granted to 30 million hectares for indigenous communities in 575 resguardos.

19. Article 20. With reference to its previous comment on the measures adopted to give effect to this Article of the Convention, the Committee notes the Government’s indication that, under the terms of Decree No. 1128 of 1999, restructuring the Ministry of Labour and Social Security, the labour inspectorate for all categories of workers is the Special Labour Inspection, Supervision and Control Unit. The Committee welcomes the information provided and once again requests the Government to supply information on the inspection activities carried out in indigenous areas, including the number of inspections, the violations reported and the measures taken, particularly to ensure the application in practice of the principle of equal remuneration for work of equal value.

20. Articles 21 and 22. The Committee notes the information provided by the Government on the training provided to members of indigenous communities, with an indication of its duration, the numbers of the population receiving training (disaggregated by gender) and the geographical areas covered.

21. Article 24. The Committee notes with interest that regulations have been issued under Act No. 691 of 2001 on the participation of ethnic groups in the general social security and health system and that ten health promotion enterprises have been established by Decree No. 330 of 2001. The Committee notes the Government’s indication that indigenous communities are among the groups benefiting from subsidized social security services based on the census provided by the president of the local council to the mayor of the municipality. It notes that between 1 August 2000 and 31 July 2002 a total of 471,241 indigenous persons were registered with the social security system at a cost of 73,281 million Colombian pesos at 2001 values. The Committee would be grateful if the Government would provide information on the percentage of the indigenous population covered by the social security system. It also requests the Government to indicate the manner in which the conservation and development of traditional medicine and alternative forms of care are promoted in practice.

22. Articles 26 to 29. The Committee notes the various activities carried out between 1999 and 2002 in the context of the National Ethnic Education Programme for the training of 2,000 ethnic educational teachers for indigenous boys, girls and young persons. The Committee would be grateful if the Government would continue to provide information on the application of these Articles of the Convention in practice.