Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Guatemala (Ratification: 1996)

1. Article 1 of the Convention. The Committee notes that according to the Government, no state bodies or indigenous organizations have statistical information indicating the population covered by the Convention, as no distinction is made as to ethnic group in implementing public policies. The Government also indicates that it has not reached consensus with any indigenous organizations or institutions on the criteria for determining membership of an ethnic group. The Committee points out that since the Convention provides for the implementation of a series of public policies targeting indigenous peoples exclusively, it is important to set criteria for determining its coverage. The Committee hopes that the Government will do its utmost, in consultation with the peoples concerned, to establish criteria for identifying peoples liable to be covered by the Convention, bearing in mind that paragraph 2 of this Article establishes that self-identification must be regarded as a fundamental criterion. Please report to the Committee on progress made in this regard, and specify whether the Convention applies to non-Garífuna peoples of African extraction indicating, if appropriate, how the latter’s representation in Government institutions is secured.

2. Articles 2 and 33. The Committee notes that the Indigenous Advisory Council (CAI) has had great difficulty in starting up because the Government decision (No. 96-2005) which established it made no provision for funding. However, it has created a political environment allowing the presidency to become acquainted with the most relevant indigenous issues, due in particular to government mobile units, at which the indigenous organizations can hand in their requests, proposals and recommendations. The Committee notes that in 2006 a Committee for the Inclusion of Indigenous Peoples, attached to the executive, was set up for the purpose of negotiating/implementing 300 decision-making posts to be filled by representatives of indigenous peoples, and that the President proposed launching a “National Agreement for implementation of social expenditure for poverty reduction”, the aim being to reach short- and medium-term operational agreements on indigenous peoples and inclusion among other subjects, a “steering committee on indigenous peoples and inclusion” having being officially set up to implement the agreements. The Committee points out that according to Article 6(1)(c), in applying the Convention, governments must establish means for the full development of indigenous peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose. It accordingly hopes that the Government will take the necessary steps to secure funding to overcome the abovementioned difficulties. It also requests the Government to report on the powers, operation, membership and representation machinery of the CAI, and hopes that the Government will continue to provide information on its activities and their effect in practice, and on progress towards achieving the objectives of the abovementioned committee and steering committee.

3. Article 3. Non-discrimination. The Committee notes the training, information and advocacy measures undertaken by the Presidential Coordinating Committee on Government Human Rights Policy (COPREDEH) and the Presidential Committee against Discrimination and Racism in Guatemala (CODISRA), particularly the latter’s strategies for the involvement of private initiative. The Committee hopes that the Government will continue to keep it informed in this regard, indicating the effect of the above measures in practice.

4. Article 4. Further to its previous comments concerning the issuing of documents for undocumented indigenous people, the Committee notes with interest that on 4 April 2006 the Congress of the Republic approved Decree No. 09-2006, the Temporary Act on Personal Documents. Please provide information on the latter’s effect in practice indicating, for example, the number of indigenous people who have obtained documents since its entry into force.

5. Administration of Justice. The Committee notes with interest the various measures adopted to apply the relevant provisions of the Convention. It notes in particular that the Strategic Plan of the Institute of the Ombudsperson for Criminal Affairs for the period 2005-09 provides for an “ethnic or intercultural focus” in all aspects of the provision of “a single technical protection service”. It also notes the efforts made to institutionalize machinery for coordinating official state law and the law practised by the traditional authorities of indigenous peoples, and to support the provision of cultural expert opinions in cases where this is warranted. The Committee would be grateful if the Government would continue to provide full information on the progress made and difficulties encountered in applying the relevant provisions of the Convention, particularly in relation to the issues mentioned above. Please also provide, where possible, samples of court decisions reflecting such progress.

Lands

6. Act on land registry information. The Committee notes that according to the Government, “it can be said” that the indigenous peoples were consulted on the Act, since the Joint Committee on the Land-Related Rights of Indigenous Peoples (COPART) participated actively in the drafting and debate stage, and while the Governing Board of the Land Information Register (RIC) has no indigenous representatives, it is in continuous contact with indigenous and peasant organizations in connection with applications that they file and through land registration activities. The Committee also notes that the provisions of the Act, particularly section 73, which establishes that Title VII “Regularization under the land registration process” will apply until the entry into force of the “Land Tenure Act” and that for this purpose, the executive body shall submit the corresponding initiatives to the Congress of the Republic at the earliest possible date. It also notes that the temporary provisions of the abovementioned Act establish machinery for determining and registering communal lands (section 65) and indigenous ceremonial sites (section 66) and that it defines communal lands as lands under the ownership, possession or tenure of indigenous or peasant communities as collective bodies with or without legal personality (section 23(y)) including those registered in the name of the State and municipalities. The Committee reminds the Government that the prior consultations required by Article 6 of the Convention, must be carried out by means of appropriate procedures and in particular through the peoples’ representative institutions whenever consideration is being given to legislative or administrative measures which may affect the peoples directly. It accordingly asks the Government to provide information on the manner in which the abovementioned consultations were carried out. Please also provide information on progress in applying the Act, citing specific cases of indigenous communities that have benefited from it. The Committee would also be grateful for information on the measures adopted or envisaged to regularize the situation of indigenous villagers or communities who occupy or use in any other manner lands located on State reservations, protected areas or private property, and on progress made in the preparation of the Land Tenure Act, in consultation with the indigenous peoples.

7. Agrarian policy. The Committee notes from the Government’s information that there is no body responsible for coordinating national agrarian policy and that the Land Fund (FONTIERRA) is governed by Internal Act No. 24‑99, section 45 of which excludes the lands of indigenous communities from the scope of the Act. However, according to a report by FONTIERRA, attached to the Government’s report, FONTIERRA applies Article 14, paragraphs 1 and 2, of the Convention in keeping with the Regulations on Regularization of the Tenure of Lands Delivered by the State, Government Decision No. 386-2001, in certain cases involving the legalization of land tenure (section 8). Please explain the position in law of indigenous community lands legalized under the above mechanism, specifying the conditions under which the awards referred to in the Regulations are made. The Committee notes the general results obtained through the application of the above Regulations in terms of the number of families and communities that have benefited, and asks the Government to give specific information on the different indigenous communities that have benefited from these measures..

8. Disputes. In its previous comments the Committee noted that the Presidential Dispute Settlement Unit (UPRECO) had in recent years intervened in disputes over lands and water. It also noted that the Secretariat for Agrarian Affairs of the Presidency of the Republic (CONTIERRA) was monitoring 2,000 land disputes, which were classified in four categories: occupation, disputes of law, extraterritorial boundary disputes and land regularization cases. The Committee would be grateful if the Government would state whether the abovementioned disputes and cases include any claims by indigenous communities and, if so, indicate the manner in which they are processed.

9. Article 20. Recruitment and conditions of employment. The Committee notes the statistical data of Guatemalan temporary migrant workers. It notes that according to the Government, these workers cannot be disaggregated by ethnic group, but that most of them belong to indigenous peoples. The Government also indicates that there are no illegal Guatemalan seasonal workers. In its previous comments, the Committee noted the measures adopted by the Department of Labour Migration of the Ministry of Labour to ensure that the provisions of the Convention are applied to seasonal indigenous workers in the south of Mexico who are hired unlawfully. The Committee would be grateful if the Government would provide information on developments in this situation and on the main problems in applying this Article to indigenous workers in Guatemala.

10. Articles 24 and 25 (social security and health). The Committee notes the information supplied by the Government concerning points 12 and 13 of the previous direct request, and will continue to monitor compliance with these provisions of the Convention through the information supplied by the Government in its future reports. In particular, it requests the Government to provide the results of the measures taken to target the problem of child malnutrition.

11. Articles 26 to 31 (education and the media). The Committee trusts that the Government will provide information on the application of these Articles in its next report.

12. Part VIII of the report form. The Committee reminds the Government once again that this part of the report form approved by the Governing Body states that “although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application”. The Committee would be grateful if the Government would state whether it plans to carry out consultations of this kind.