Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Communication from the International Organisation of Employers (IOE). The Committee notes that the IOE has submitted observations in August 2012 on the application in law and practice of Articles 6, 7, 15 and 16 of the Convention concerning the requirement of consultation. In this regard, the IOE raises the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus of indigenous and tribal peoples, and the importance for the Committee to be aware of the consequences of the issue in relation to legal security, financial costs and certainty of both public and private investment. The IOE refers to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also states that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to include in its next report any comments that it deems appropriate on the observations made by the IOE.

Part VIII of the report form. Communications from indigenous peoples. The Committee notes with regret that the Government has not supplied its comments on the observations from two workers’ confederations which were sent to it in September and October 2011. The International Trade Union Confederation (ITUC) drew the Committee’s attention to a document from the Democratic Bolivian Assembly rejecting the construction of the Villa Tunari – San Ignacio de Moxos highway. The Bolivian Workers’ Federation (COB) submitted a document to denounce the lack of prior consultation and the criminalization of social protest in Bolivia. The COB expressed its support for the declaration from the Ayllus y Markas del Qullasuyu National Council (CONAMAQ) signed in Trinidad on 17 August 2011. The Committee notes that CONAMAQ, among other things, announced its rejection of the construction of the Villa Tunari – San Ignacio de Moxos highway since it would affect the TIPNIS (Isiboro Sécure Indigenous Territory and National Park) territories and because the right to free and informed prior consultation had not been observed. CONAMAQ demanded that all the ancestral territories be restored and title thereto be granted and that the corresponding territorial compensation be made. CONAMAQ called for the adoption of a law concerning the right to consultation and participation in the benefits deriving from mining and other natural resources. CONAMAQ requested access to the Development Fund for Indigenous and Original Peoples and Campesino [farming] Communities to be extended, with the inclusion of gender mainstreaming, to other indigenous communities. CONAMAQ asked that, in the 2011 census, new ancestral nations and indigenous peoples that predated the colonial era, including the Afro-Bolivian people, should be identified by name, so as to consolidate the existence of indigenous peoples in the Plurinational State of Bolivia.

The Committee understands that the contract to construct the Villa Tunari – San Ignacio de Moxos highway was awarded in 2008 and construction began in 2009. In February 2009, a representative indigenous organization – the TIPNIS Subcommittee – was recognized by the Government as the sole collective owner of the territory with a total surface area of 1,091,656 hectares. The Committee observes that further to the “VIII Grand Indigenous March” which took place in August–September 2011 and in accordance with sections 1, 2, 3 and 4 of Act No. 180 of 24 October 2011 on the Protection of the Indigenous Territory and National Park Isoboro Sécure, the TIPNIS was given socio-cultural and natural heritage status and recognized as an area of environmental conservation and historical reproduction and the habitat of the Chimán, Turacré and Mojeño-Trinitario indigenous peoples. It was also stipulated that neither the Villa Tunari – San Ignacio de Moxos highway nor any other highway would cross the TIPNIS. However, by means of Act No. 222 of 10 February 2012 on the Consultation of Indigenous Peoples of TIPNIS, the three indigenous communities of the TIPNIS were invited to attend consultations. Section 4 of Act No. 222 provides that the purpose of the consultations is to reach an agreement between the State and the three indigenous peoples on two matters: “(a) to determine whether or not the TIPNIS should be a protected area, in order to promote the development of the activities of the Mojeño-Trinitario, Chimán and Yuracaré indigenous peoples, and also the construction of the Villa Tunari – San Ignacio de Moxos highway”; (b) to establish the means of ensuring the protection of the TIPNIS, including the immediate eviction of illegal settlements within the TIPNIS. By means of Act No. 240 of 10 May 2012, Act No. 222 was amended, establishing that the maximum period from start to finish of the consultations should be 210 days following the promulgation of Act No. 222 (i.e. the consultations should be concluded on 7 September 2012).

The Committee observes that the Plurinational Constitutional Court issued ruling No. 0300/2012 dated 18 June 2012 declaring the constitutionality of the invitation to attend consultations issued to the TIPNIS indigenous peoples (section 1 of Act No. 222) and of the functions of the Inter-Cultural Agency for Democratic Consolidation (SIFDE), tasked with observation and monitoring of the consultation process (section 7 of Act No. 222). The Court declared the conditional constitutionality of section 1 of Act No. 222 in relation to the phrase “… and establish the content of this process [of free and informed prior consultation with the TIPNIS indigenous peoples] and its procedures” and the other provisions [sections 3, 4(a), 6 and 9] of Act No. 222. The Plurinational Constitutional Court stated that the consultations are conditional on being coordinated in observance of the horizontal relationship between the State and the TIPNIS indigenous peoples and urged the legislative and executive authorities to draw up an agreed joint protocol with the indigenous peoples with the full participation of their institutions. The Committee stresses the importance of developing appropriate and permanent mechanisms and procedures for the consultation of the peoples concerned, considering that the purpose of the Convention is to ensure the participation of indigenous peoples, through their representative organizations in decision-making on issues, programmes and policies that affect their interests. The Committee requests the Government to indicate how it has ensured compliance with the Convention in the context of the situation generated by the construction of the road Villa Tunari – San Ignacio de Moxos. The Committee hopes that mechanisms for dialogue have been established which enjoy the confidence of the parties and which, through good faith negotiations in accordance with the Convention, have enabled appropriate solutions to be found to the situation arising from the construction of the Villa Tunari – San Ignacio de Moxos highway. The Committee requests the Government to include detailed information in its next report on the issues raised in the present observation and on the manner in which account has been taken of the interests and priorities of the indigenous peoples concerned. The Committee invites the Government, when preparing its next report, to consult the social partners and indigenous organizations on the measures taken to give effect to the Convention. The Committee hopes that the Government will submit a report in 2013 containing specific information on the issues raised in the comments made in 2009 and on the results achieved by the measures taken to give effect to each of the provisions of the Convention.