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

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

1. The Committee notes the information provided in the Government’s reports received in October 2002 and September 2003, respectively, and their annexes.

2. The Committee notes with interest the adoption of Act No. 685 of 2001 issuing the Mining Code, recognizing extensive rights to indigenous communities to control the exploration and exploitation of the minerals in their lands. This issue is addressed in greater detail in a request addressed directly to the Government.

3. The Committee notes the information provided by the Government in its reports indicating that the Council of State, in a decision of 20 May 1999, confirmed that Decree No. 1320 of 1998 was in force before the representation referred to below had been examined. The Government indicated that the Decree sets forth the concept contained in article 330 of the Constitution concerning the participation of the representatives of indigenous peoples without any restrictions and that its regulation by means of a Decree was consonant with the duty and function entrusted to the Government by the Constitution. The Committee reminds the Government that the tripartite committee which examined the representation under article 24 of the ILO Constitution in 2001 indicated that the process of prior consultation, as provided for in Decree No. 1320, is not consistent with Articles 2, 6, 7 and 15 of the Convention, and that effective consultation requires that sufficient time be given to allow the country’s indigenous peoples to engage in their own decision-making processes and to participate effectively in decisions taken in a manner consistent with their cultural and social traditions, since if this is not done it will be impossible to meet the fundamental requirements of prior consultation and participation (document GB.282/14/3, paragraph 79). The Committee trusts that, as consultation and participation are central to this instrument, the Government will consider amending its legislation to bring it into conformity with Articles 2, 6, 7 and 15 of the Convention. As the above Decree is still being re-examined in the light of the Governing Body’s recommendations concerning the representation, the Committee trusts that the Government will take fully into account the explanations provided in the report of the Governing Body on the requirements of these Articles of the Convention. In this respect, the Committee notes the extensive consultations with indigenous communities referred to by the Government in relation to various projects.

4. With reference to its comments on the oil exploitation activities in the Resguardo Unido U’wa, the Committee notes the information provided by the Government indicating that in the event of the cession of rights, exploration for hydrocarbons will be entrusted to a Colombian state enterprise (Ecopetrol) with the objective of balancing public finances and achieving the well-being of all Colombian citizens, and that this situation is being explained to the communities concerned. The Government also indicated that a social action plan has been established covering 51 communities in the area of influence of the project for the promotion of social investment, the employment of unskilled and semi-skilled workers, community participation and support for community organization and training in entrepreneurship for the provision of services to the oil project. The Government added that in March 2003 the Ministry of the Environment undertook a first follow-up visit and that on 17 March 2003 a meeting was held with ten representatives of the U’wa people through the Association of Traditional U’wa Authorities (ASOU’WA) to inform them of all the technical, environmental and social aspects of an exploration project to be undertaken in the resguardo, and a proposal was made for the joint development of a working methodology with Ecopetrol with a view to the active, broad and full participation of the U’wa people in this process. The Committee also notes the Government’s indication concerning the establishment of an inter-institutional team with the participation of the Ministries of the Interior and Justice, the Environment, Housing and Territorial Development, Mines and Energy, Agriculture, External Affairs, as well as the National Parks Unit and the Colombian Agrarian Reform Institute. This team is to provide leadership for all the action required so that the process of prospecting for hydrocarbons in the U’wa territory is in accordance with international agreements, the constitutional provisions and laws that are in force and is based on the optimum existing technological developments. The objective is to ensure that the oil project, rather than being a threat, constitutes an opportunity for resuscitating, strengthening and maintaining the millennial culture of the U’wa, while guaranteeing the environmental and ecological balance of the territory and at the same time giving rise to peace and sustainable development, thereby contributing to generating prosperity and ensuring the survival of the U’wa people. The Committee would be grateful if the Government would keep it informed of any developments in its next report and trusts that it will adopt all the necessary measures to guarantee that the U’wa people benefit from all the rights afforded by the Convention.

5. The Committee notes the information provided by the Government in its reports concerning negotiations with the representatives of the Embera-Katío people concerning the construction of the Urrá hydroelectric dam. The Committee notes with interest the payment of the amount granted as compensation for the exploitation of water resources, which was negotiated with the Alliance of Smaller Town Councils of the Esmeralda River and the Sinú River Areas, which will be used to purchase lands to extend the resguardo. It also notes with interest that, as a result of a decision by the Ministry of the Environment, the enterprise Urrá S.A. purchased 9,994 hectares for the Embera Katío del Alto Sinú people. The Government indicates that it has granted a subsistence and transport subsidy to the members of the five communities constituting this Alliance and that a court ruling is still awaited on the granting of other entitlements of the Major Town Councils of the Río Verde and Río Sinú (Iwagadó). The Government indicates that meetings have been held by two follow-up committees to analyse the status of the entitlements acquired, but that there are difficulties in holding further meetings and in the implementation of new projects in view of a crisis within the indigenous organizations. The Committee trusts that the Government will continue to provide information on the progress achieved in this respect in its next report.

6. The Committee notes that the Government has not provided information on the measures adopted or envisaged to investigate the acts referred to in the report of the tripartite committee which formulated the recommendations adopted by the Governing Body at its 282nd Session (November 2001) concerning the use of force against the U’wa people. The Committee requests the Government to provide information in its next report.

7. The Committee once again regrets the lack of information in the reports on the measures adopted or envisaged to prevent acts of intimidation and violence against members of the Embera-Katío people and on the progress made with the investigations of the alleged murders, kidnappings and threats perpetrated against the spokespersons of the community, including Alonso Domicó Jarupia, Alirio Pedro Domicó, Lucindo Domicó Cabrera and Kimy Domicó Pernía.

8. Reiterating its previous comments, the Committee requests the Government to indicate the progress made in the investigations of the allegations of human rights violations, including the killing of indigenous persons in the communities of the Sierra Nevada de Santa Marta and to specify the institutions which are carrying them out, such as the Public Prosecutor’s Office, the Office of the Attorney-General or the Office of the Ombudsman.

9. The Committee is addressing a request directly to the Government on other matters.