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

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

1. In 2005, the Committee took note of a communication from the Workers’ Trade Union Confederation (USO), received on 31 August 2005 and sent to the Government on 7 September 2005, concerning the situation of the Curbaradó and Jiguamiandó, which are communities of African extraction. The Committee noted that the Government had not replied to the USO’s observations. It also asked the Government and the USO to specify whether the abovementioned communities identify themselves as tribal communities within the meaning of Article 1, paragraph 1(a), of the Convention for the purpose of determining whether they are covered by the Convention. The Committee notes that this year, the USO sent observations which were received on 31 August and 27 September and sent to the Government on 3 October 2006. It also notes the information sent by the Government on the status of consultations with the U’wa people, received on 3 October 2006 and the Government’s report, received on 15 November 2006. In view of the late arrival of the USO’s observations and the Government’s report, as far as the situation of the Curbaradó and Jiguamiandó communities is concerned the Committee has examined only those comments that address the matter of the coverage of the Convention on which it requested further information from the USO and from the Government, and the direct consequences of the definition of these peoples. It will examine the other matters in its future comments.

Communities of African extraction: the Curbaradó
and Jiguamiandó

2. Article 1 of the Convention. Coverage. In 2005, the Committee expressed the view that in the light of the information sent by the USO, the black communities of Curbaradó and Jiguamiandó appeared to fulfil the requirements set in Article 1, paragraph 1(a), of the Convention, according to which the Convention applies to “tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations”. Furthermore, from the information provided in the communication, the representatives of the community councils of the Curbaradó and the Jiguamiandó had participated in preparing the USO’s observations, and it appeared that in seeking application of the Convention to their communities, these peoples identify themselves as being tribal. The Committee further noted that the definition of “black community” in Act No. 70 appeared to coincide with the definition of tribal peoples in the Convention. It accordingly asked the Government and the USO to specify whether these communities identify themselves as tribal within the meaning of Article 1, paragraph 1(a), and requested the Government to give its reasons if it deems that these communities are not tribal peoples within the meaning of the Convention. The Committee notes that the USO confirmed that the communities identify themselves as tribal. It also notes with satisfaction the Government’s statement that the Curbaradó and Jiguamiandó communities, which are of African extraction, are covered by the Convention. The Committee requests the Government to state whether all the communities of African extraction recognized by Act No. 70 of 1993 are covered by the Convention.

Lands and natural resources

3. In its comments of 2005, the Committee noted that, according to the USO, since 2001 rights abuses against these communities have been related to the extensive cultivation of oil palms and African palms, and stock-raising projects, which have been undertaken despite the existence of collective title to these lands; and that the “dispossession of the lands of these communities has also been achieved through unlawful legal acts by palm-growing enterprises by means, among others, of the conclusion of contracts in violation of Act No. 70, fraudulent misrepresentation, deceit, the drawing up of legal acts which purportedly give the approval of these communities, the misrepresentation of the functions of duly recognized and registered representatives of the communities, agreements for the establishment of agricultural undertakings facilitated by public officials who are members of the armed forces, coercion and direct threats against occupants, who are frequently compelled to sell their property through fear or the absence of any other beneficial option”. The USO referred to intensive deforestation for the cultivation of African palms and stock-raising, observing that these have given rise to devastating social and environmental damage. It also reported that the Colombian Rural Development Institute (INCODER) estimated that 4,993 hectares of the collective lands of the Curbaradó and the Jiguamiandó had been taken over for palm cultivation; that 810 hectares were used for stock-raising; that 93 per cent of the area under palm cultivation was located in their collective lands, and the remaining 7 per cent consisted of private property, awarded by the Colombian Agrarian Reform Institute (INCORA) before Act No. 70 took effect.

4. In its comments on these matters, the Committee observed that if it was confirmed that these communities are covered by the Convention, Articles 6, 7 and 15 (consultations and natural resources) and Articles 13 to 19 (land) should apply. The Committee referred in particular to the right of these peoples to return to their traditional lands as soon as the grounds for relocation and transfer ceased to exist (Article 16, paragraph 3), and to the measures envisaged by the Government against any unauthorized intrusion in the lands of the peoples concerned for any unauthorized use by persons alien to them (Article 18).

5. Lands. The Committee notes the measures taken by the Government to demarcate collective territories of the community councils of Jiguamiandó and Curbaradó, which aim in particular at recovering lands improperly occupied by reviewing unlawfully granted titles or rights. It notes in particular that the State Council determined the validity of titles granted by INCORA registered in the public deeds registry offices “prior to the deadline for submission of the application for collective title for the black communities”. Please provide further details and indicate the consequences of this decision. The Committee points out that the Convention protects not only lands that the peoples concerned already own but also lands that they traditionally occupy; and that according to the Convention, governments must take the necessary steps to determine the lands which the peoples concerned occupy traditionally and to guarantee effective protection of their rights of ownership and possession (Article 14, paragraph 2). The provisions of the Convention that address land issues, more specifically Articles 13 and 14, must be construed in the context of the general policy referred to in Article 2, paragraph 1, namely that governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity. In practice, these provisions must be implemented in parallel with those on consultation set forth in Article 6. Consequently, the Committee hopes that the Government will give full effect to the abovementioned Articles in demarcating lands traditionally occupied by the abovementioned communities. It asks the Government to keep it informed regarding this matter, indicating in particular the manner in which the communities participate in this process and giving particulars of the results of the measures adopted to recover the lands improperly occupied by individuals who are not members of the communities.

6. The Committee notes with interest Decision No. 0482 of 18 April 2005 by the Regional Autonomous Corporation for the Sustainable Development of Chocó ordering the “suspension of all activities carried on for the purpose of establishing the cultivation of either the African palm or the oil palm within the jurisdiction of the Department of Chocó (…) specifically in the areas over which the Jiguamiandó and Curbaradó communities have collective title (…), without the appropriate authorization or concession granted by the primary regional environmental authority – CODECHOCO”. The Committee points out that according to Article 15, paragraph 2, “governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands”. The Committee accordingly asks the Government to carry out consultations with the peoples concerned regarding the authorizations or concessions mentioned above and those for stock-raising, deforestation or logging projects, having regard to the procedure established in Article 6, to determine whether and to what extent the peoples’ interests would be prejudiced, as required by Article 15, paragraph 2. It trusts that the Government will do its utmost to carry out the studies provided for in Article 7 in cooperation with the peoples concerned. It also invites the Government to examine the possibility of bringing the relevant legislation into conformity with the Convention, and to provide detailed information on this matter in its next report.

7. Consultations. The Committee notes that the Government has initiated a process to move forward the regulation of various titles pursuant to Act No. 70 of 1993, with the participation of representatives of the community councils that hold collective titles. The Committee points out that the provisions of the Convention, including Article 6, apply to indigenous and tribal peoples as defined in Article 1. The Committee, therefore, asks the Government to undertake consultations with all the peoples involved in the process to adopt regulations with regard to regulate Act No. 70, without imposing any requirements such as ownership of the lands they traditionally occupy or membership of the community council. Please keep the Committee informed regarding this matter and on any progress made in the regulation process.

The U’wa people

8. Articles 6 and 15, paragraph 2. The Committee notes the “Report on the Prior Consultation of the U’wa People” produced by the Directorate of Ethnic Groups of the Ministry of the Interior and Justice. The report indicates the measures taken by the Government and ECOPETROL S.A. for the purpose of holding prior consultations with the Association of Indigenous Councils and Traditional Authorities of the Department of Arauca – ASCATIDAR – and the Association of U’wa Councils and Traditional Authorities – ASOU’WA. The Committee notes that in both cases there have been difficulties in establishing and maintaining a constructive dialogue between the Government and the peoples concerned in adopting decisions and that the process has been going on for 14 years during which acts of violence have been committed against the U’wa community. The Committee points out that a climate of mutual trust is essential to any consultations and particularly in the present context where indigenous and tribal peoples mistrust state institutions and feel marginalized, due to complex realities that go back a very long way and which have yet to be overcome. Accordingly, bearing in mind that the Government requested technical assistance from the Office to facilitate consultations with the U’wa people pursuant to recommendations made in the report of the tripartite committee set up to examine a representation which the Governing Body adopted at its 282nd Session (November 2001), the Committee notes that the Office has again stated its readiness to help Colombia to give better effect to the recommendations of the supervisory bodies.

The Committee hopes that, with the technical assistance of the Office, it will be possible to instil the necessary trust to facilitate consultations. It recalls that, 14 years having gone by, the committee set up to examine the representation expressed concern in its report “at the information received from the Central Unitary Workers’ Union (CUT) and other reliable sources suggesting the repeated use of force against the U’wa community by government soldiers and police” (paragraph 92). The Committee points out that given the lack of trust, such assistance ought to take place as part of a process and that a simple meeting would not suffice. The Committee invites the Government to accept the technical assistance of the Office and hopes that it will provide information on the follow-up to the present comment.