Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee notes a communication from the International Confederation of Free Trade Unions (ICFTU), received on 25 August 2005, and the Government’s reply, received on 17 November 2005, which also replies in part to its observation of 2004.

Comments of the ICFTU - Consultations on oil exploitation

Background

1. Consultation, exploration and exploitation of natural resources. In 2004, the Committee noted a communication from the International Confederation of Free Trade Unions (ICFTU) and the Government’s reply. The communication referred to the Guaraní indigenous community of Tentayapi, in the Department of Chuquisaca, in the middle of a region coveted for its oil reserves, covering an area of 20,000 hectares with legal title. Despite this, an oil company (MAXUS-REPSOL) is seeking, according to the allegations, to undertake exploration and exploitation activities in their lands (Bloque Caipependi), without consulting or obtaining the approval of the communities concerned. According to the ICFTU, the enterprise obtained a few signatures by means of deceit, as the signatories were unable to read to understand what they were signing. The communication reports that the indigenous people have been very active in opposing these activities and that they even persuaded the Chamber of Deputies to approve a Bill to preserve Tentayapi in July 2004. Finally, it indicates that MAXUS-REPSOL started prospecting on the lands of the community on that very month.

2. The Committee also noted the Government’s comments on the communication from the ICFTU and the two volumes of documents attached pertaining to studies carried out by MAXUS-REPSOL, which include a document for public distribution together with a copy (six pages), a document recording delivery and receipt of the latter, a document for public consultation in Tentayapi, signed by six inhabitants of Tentayapi, and a number of documents entitled "private document - agreement to obtain ownership, undertaking to compensate".

3. In 2004 the Committee observed, firstly, that the enterprise MAXUS-REPSOL held an information meeting with the Tentayapi community and, secondly, that the latter community is not satisfied with the procedure followed, nor the outcome, and that on the contrary it took its claims to various national bodies before sending its communication. The Committee recalls that consultation is a process, and not a mere act of information, involving a specific procedure and with the objective of reaching an agreement with the peoples concerned and that, in the case of natural resources, there are also other requirements. The Committee also noted previously that the obligation to ensure that consultations are held in a manner consistent with the requirements established in the Convention is an obligation to be discharged by governments, not by private individuals or companies.

4. The Committee expressed its hope previously that the Government would promote real dialogue with the communities concerned in the manner laid down in the Convention and that it would keep the Committee informed of any developments in the situation.

Communication of 2005

5. The Committee notes a further communication, also by the ICFTU, dated 25 August 2005, and forwarded to the Government on 1 September 2005. It notes the Government’s observations received on 24 October 2005. According to this latest communication, up to the date on which it was sent, the Tentayapi community had still not been consulted on the oil exploration and exploitation activities which the company Maxus Bolivia Inc. (Repsol-YPF) has commenced and is seeking to undertake in its community lands of origin (TCO). The ICFTU refers to many activities undertaken by the community to defend its rights to its lands and indicates that, on 26 November 2004, Act No. 2921 was adopted declaring the Tentayapi community the "Historical, Cultural and Natural Heritage of the Guarani-Simba". Nevertheless, the ICFTU contends that the Government has not replied to any of the letters sent by the community and has not made any effort to promote a process of consultation. It reiterates the need to hold consultations through adequate procedures, and particularly through representative institutions, in accordance with Articles 6, 7 and 15 of the Convention. Furthermore, it deplores the absence of measures by the Government, such as the suspension of the activities of the Maxus enterprise, to protect the rights of the community. It adds that the environmental impact assessment study carried out by the company Tarija Ecogestión SRL, under contract from Maxus, was prepared without the collaboration of the Tentayapi community, thereby exacerbating the lack of confidence, and that the only reference to the community in Chapter 13 (Identification of information gaps) is the mention "great difficulty in entering the various communities located in the project area" and "difficulty in obtaining information from the TCO Tentayapi". In conclusion, the ICFTU indicates that the isolation of the community is what has enabled it to survive up to now.

6. In its observations on the communication, the Government indicates that it has undertaken various actions to protect and safeguard the Tentayapi community, including the adoption of Act No. 2921 referred to above, and that due to the political situation of the country it has not been possible to engage in an appropriate consultation process. It states that an Inter-institutional Commission has been established, under the responsibility of the Ministry of Indigenous Affairs and Peoples of Origin (MAIPO), the Ministry of Hydrocarbons, the Ministry of the President’s Office and with the participation of indigenous organizations, the Eastern Bolivian Indigenous Confederation (CIDOB), the Guaraní People’s Assembly (APG) and the Capitanes de Chuquisaca Council (CCCH). It indicates that this Commission is planning to enter the Tentayapi community on 24 October 2005 to engage in the consultation process and that it will provide a detailed report on this process to the Committee. It adds that the Vice-Ministry of Justice is implementing the project "Indigenous Peoples and Empowerment", which has three offices, of which one, in Monteagudo, is closely following the dispute of the Tentayapi indigenous community. In conclusion, the Government states that the company MAXUS-REPSOL voluntarily ceased its activities on the lands owned by the Tentayapi community in July 2004, according to the information from the office in Monteagudo.

7. The Committee requests the Government to provide information on the impact in practice of the adoption of Act No. 2921 on the prospection and exploitation project referred to above. Noting that MAXUS-REPSOL has suspended its activities voluntarily, the Committee requests the Government to take the necessary measures to engage in prior consultation in accordance with Articles 15, 6 and 7 of the Convention before authorizing the recommencement of activities. The Committee once again recalls that ensuring that consultations are held in a manner that is compatible with the requirements established in the Convention is an obligation to be discharged by governments, not by private individuals or companies. The Committee requests the Government to keep it informed of developments in the situation.

Follow-up of a representation in 1999 on consultation and forest resources

8.  In March 1999, the Governing Body adopted the report of the committee set up to examine the representation made by the Bolivian Central of Workers (COB) on the application of Convention No. 169 (document GB.274/16/7). The representation alleged that the National Forestry Superintendency had issued administrative decisions granting, without prior consultation, 27 renewable forestry concessions for a term of 40 years which overlap with community lands of origin. These lands are undergoing a process of review in order to determine third-party entitlements within them. The tripartite committee indicated that, in view of the measures to review title to the lands claimed, the expropriations and concessions for the exploitation of resources may directly affect the viability and interests of the indigenous peoples concerned and that Article 15 of the Convention should be applied in conjunction with Articles 6 and 7, and it recalled that 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. Furthermore, while noting that the lands with which the forestry concessions overlap had not been titled as community lands of origin, the tripartite committee observed that it had not received any evidence indicating that such consultations, whether under Article 6(a) or Article 15(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.

9. In its last observation, the Committee noted that there was no new information on the main issues which had given rise to the representation. It requested the Government to provide detailed information in its next report on the action taken on the recommendations of the tripartite committee. In accordance with these recommendations, the Committee of Experts had been requesting the Government for several years to provide information on: (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 lands; (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 lands of origin, 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.

10. The Committee notes with interest that, in a communication of 17 November 2005, the Government indicates that concessions have not at present been granted in community lands of origin, but only in specially delimited lands.

11. With regard to the other remaining matters, the Government reiterates that the basis of the representation is not genuine, as it does not concern the delivery of new concessions, but the reconversion of pre-existing forestry concessions in indigenous lands to which title had not yet been granted, but was under review. As these matters were duly examined by the tripartite committee, the Committee of Experts will not reopen them. Furthermore, the Committee recalls that, under the terms of 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 is accordingly necessary to engage in the consultations envisaged in Article 15, paragraph 2, even though the lands are undergoing a process of review and title has not yet been granted.

12. The Committee accordingly urges the Government to: (1) take the necessary measures to resolve the situations which gave rise to the representation, taking into account the need to establish an effective mechanism for prior consultation with indigenous peoples, as required by Articles 6 and 15 of the Convention, before undertaking any programme of exploration or exploitation of the resources pertaining to their lands; (2) provide information on 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 lands of origin, 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) provide information on the progress achieved 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) indicate the specific situation of the indigenous groups inhabiting the area covered by the concessions. In brief, the Committee emphasizes the need to find solutions in consultation with the peoples concerned.

13. Towards a culture of consultation. The Committee recalls that the facts which gave rise to the COB’s representation present the common trait with the ICFTU’s communication that both of them refer to the need to apply in conjunction Articles 6, 7 and 15 of the Convention and that no progress has been made in this respect, for which reason the issue of the lack of adequate consultation in relation to forestry concessions has arisen once again with regard to oil prospecting. The Committee notes that, according to the Government, the Ministry of Hydrocarbons has prepared a legislative proposal relating to compulsory consultations with indigenous peoples prior to the exploration and exploitation of natural resources pertaining to their lands, which has been forwarded to indigenous organizations for their observations. The Committee reminds the Government that it may request the technical assistance of the Office, if it considers it necessary, to lay the basis for the formulation of an appropriate framework for consultation, with the participation of indigenous peoples. The Committee requests the Government to keep it informed of the measures adopted in relation to this paragraph.

14. Forced labour. The Committee notes the study "Trapped in debt bondage in Bolivia", produced by the promotional programme on the Declaration on Fundamental Principles and Rights at Work. One of the recommendations of this study is the ratification of the Forced Labour Convention, 1930 (No. 29). The Committee notes with interest that, on 5 May 2005, Bolivia ratified Convention No. 29. It also notes with interest that it has commenced, with ILO technical assistance, the formulation of a plan of action to eradicate forced labour, which mainly affects the indigenous population, and that consultations on this plan are being held with workers’ organizations, indigenous organizations and the Ministry of Indigenous Affairs and Peoples of Origin. The Committee would be grateful if the Government would keep it informed of the outcome of the consultations on the plan of action.

The Committee is addressing a request directly to the Government.