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

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

The Committee notes the Government’s report received in August 2012, which contains detailed information in reply to its observation of 2011. The Committee also notes the Government’s reply received in February 2012 to the observations made by the International Organisation of Employers (IOE) in October 2011. In addition, the Government sent a report in September 2012 containing a detailed reply to the issues raised by the Single Confederation of Workers (CUT) in March 2012. The Committee also noted the observations made by the National Employers’ Association of Colombia (ANDI) in September 2012, which received the support of the IOE; and the new observations from the CUT received in August 2012.

Communication from the International Organisation of Employers (IOE). In its report of August 2012 the Government indicates that it shares the concern expressed by the IOE in its communication of October 2011, regarding the fact that many aspects of the Convention are not reflected in the world of work. The Government states that such aspects are the responsibility of another government department, the Ministry of the Interior, which implies a more substantial commitment on the part of the State. The Committee notes that the Government understands that the obligations of the Convention are addressed to States and that the Government formulates its public policy accordingly. The Government states that companies must comply with the legislation which is adopted to give effect to the Convention. Recognizing the concern of the IOE in the report received in August 2012, the Government highlights the case law of the Constitutional Court, which has affirmed emphatically that the obligation to hold prior consultations arises in connection with those measures that can directly affect ethnic communities. The Government mentions Ruling No. C-366/11, issued on 11 May 2011, whereby the Constitutional Court decided to postpone by two years the declaration of unconstitutionality of Act No. 1382 of 2010 through which the Mining Code had been amended. The Committee invites the Government, when preparing its next report, to hold consultations with the social partners and indigenous organizations on the subjects referred to in the present observation and to include information on the results achieved by the measures adopted to give effect to each of the provisions of the Convention (Parts VII and VIII of the report form).

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.

Article 2 of the Convention. Coordinated and systematic action to protect the physical, social, cultural, economic and political integrity of indigenous and Afro-Colombian communities. In reply to the Committee’s previous comments, the Government indicates in its report received in August 2012 that pursuant to Decree No. 4912 of 26 December 2011, a prevention and protection programme was organized with a differential approach aimed at ethnic protection. The Committee notes that a special mechanism was defined for the protection of the territorial rights of ethnic groups which had been violated through violence and/or the negative impact of construction and/or operation of economic mega-projects involving monocultures, mining exploitation, tourism and dock work. Furthermore, following the instructions issued by the Constitutional Court in Order No. 004 of January 2009, the Ministry of the Interior also drew up a roadmap for the formulation of an ethnic protection plan. The Committee notes the summary chart indicating the status of the processes for the protection of each of the 34 indigenous peoples identified. The Committee observes that it already referred in previous comments to some of the difficulties experienced by indigenous peoples in relation to the Convention. The Committee invites the Government to include up-to-date information in its next report on the progress achieved in relation to the processes under way for the ethnic protection of the 34 identified indigenous peoples. The Government is also requested to send a copy of the publication mentioned in the report, namely the “Guide to the implementation of the preventive policy of the Public Prosecutor’s Office, in relation to the rights of ethnic groups, for the protection of the fundamental right to free and informed prior consultation”, published in April 2011.

Article 3. Human rights. In its previous comments the Committee welcomed the adoption of Act No. 1448 of June 2011 concerning compensation for victims and restitution of lands, the aim of which is to compensate the victims of armed conflict. In the communication received in March 2012, the CUT states that there was no prior consultation with the Black, Afro-Colombian, Palenquero and Raizal communities. The CUT reports on the meetings held between community representatives and the government authorities with a view to avoiding the unconstitutional nature of the decree intended to handle, compensate and restore the rights of victims. The Committee notes the detailed information sent by the Government in August and September 2012, in which it describes the process followed during 2011 up to the adoption of Legislative Decree No. 4633 of 3 December 2011, issuing measures for assistance, care, full reparation and restitution of territorial rights to victims belonging to indigenous peoples and communities. The Government indicates that plans for full collective reparation will be adopted with the participation of representatives of the communities. The Committee invites the Government to include information in its next report on the implementation of the plans for full collective reparation provided for in Legislative Decree No. 4633 (including for the Black, Afro-Colombian, Palenguero and Raizal communities), the participation of representatives of all the communities and the manner in which these measures have contributed towards restoring the rights established in the Convention.

Protection of fundamental rights and physical restitution of collective territories. Afro-Colombian communities of the Curvaradó and Jiguamiandó river basins (department of Chocó). In the comments that it has been making for many years, with reference to the various statements made by different trade union organizations, the Committee expressed its concern at the problems and serious deficiencies relating to the application of the Convention faced by the abovementioned Afro-Colombian communities. In the report received in August 2012, the Government indicates that the State is endeavouring to improve the situation regarding protection of the Jiguamiandó. Attached to the Government’s report is comprehensive documentation on the policy and security measures for the Jiguamiandó and Curvaradó communities. In a communication received in August 2012, the CUT refers to Order No. A-045 of 7 March 2012 issued by the Special Chamber for Enforcement of Ruling No. T-025 of 2004 and the instructions issued in its compliance orders of 2009 and 2010. In view of the serious situation, the Constitutional Court is calling for the adoption of new urgent protection measures and the establishment of a clear timetable of work to ensure full compliance with all the orders issued. The CUT also refers in its communication to recent studies by the National Indigenous Organization of Colombia (ONIC), which indicated that the worst affected ethnic groups in the first six months of 2012 were the Nasa-Paéz (17 murders), Emberá (15 murders) and Awa (five murders). According to these studies, a total of 54 indigenous persons were killed especially in the region of Cauca (26 per cent of all murders), while each of the departments of Nariño and Risaralda accounted for nearly 15 per cent of the killings. Indigenous peoples in the south and south-east of the country have been affected by the internal armed conflict between the armed forces and guerrilla groups and more recently paramilitary groups, drug traffickers and criminal gangs. The ANDI also establishes a direct link between the violence affecting indigenous communities and the actions of drug trafficking and of illegal armed groups on their territories. The ANDI states that the Government is taking action to prevent acts of violence and is constantly endeavouring to preserve the lives and customs of indigenous peoples. The Committee reiterates its concern about the persistence of a grave situation and invites the Government to include information in its next report on the efforts made and the results of the measures adopted to ensure the protection of the physical, social, cultural, economic and political integrity of indigenous and Afro-Colombian communities. The Committee also requests the Government to continue to take the necessary steps to protect the communities victims of violence, to ensure that all reported occurrences of murders and violence are investigated and that the perpetrators are brought to justice.

Article 6. Legislation on consultation. In the reports received in August and September 2012, the Government states that preliminary draft legislation concerning the right to consultation has been prepared with a view to being revised at a high-level meeting. As regards the Bill concerning indigenous territorial entities, negotiations are also continuing with contributions having been received from the Organization of Indigenous Peoples of Colombian Amazonia (OPIAC) and another from the ONIC. The Government also provides information on the Bill concerning lands and rural development. Furthermore, in May 2012, a new royalty regime and its prior consultation process were declared constitutional, by judgment C-317-2012 of the Constitutional Court. In its contribution of August 2012, the ANDI recalls that the obligation of consultation has the rank of a fundamental right and is therefore protected by tutela law (constitutional guarantees). The Directorate for Prior Consultation of the Under-Ministry for Participation and Equal Rights at the Ministry of the Interior has a group of 66 professionals for analysing the economic, environmental, social and cultural impact which may be suffered by an ethnic group – indigenous, Roma or minority (Black, Afro-Colombian, Raizal or Palenquero) – by the exploitation of natural resources within its territory. The Committee invites the Government to include up-to-date information in next report on:

• (i) the preparation of the draft legislation regulating prior consultation and the consultations actually held in this regard with the indigenous peoples concerned;
• (ii) any developments in the consultation processes conducted with indigenous peoples and the approval of the draft legislation mentioned in previous comments (on a regional environmental council, rural development, access to genetic resources and related traditional knowledge, indigenous territorial entities); and
• (iii) the measures to follow up on the institutionalization of the prior consultation mechanism in the National Development Plan 2010–14 with ethnic groups and the participation in that mechanism of the indigenous peoples concerned.

Article 15. Consultation before undertaking or authorizing any programme for the exploration or exploitation of existing resources on indigenous territories. The Committee notes the information provided by the Government stating that the Directorate for Prior Consultation had held, in 2011, 66 consultations throughout the national territory. The Government has ensured that the presence of communities on the land concerned is certified within 15 days where no verification is required and within 45 days where verification is required on the land concerned. In 2011, a total of 20,128 certificates were issued for the equivalent number of projects. The consultation processes take no longer than six months. In 2011, a total of 279 consultations were recorded for a total of 703 communities; 397 certificates were issued during the first half of 2012. The Committee invites the Government to include up-to-date information in its next report on the consultations held with a view to authorizing programmes for the exploitation of existing resources. Please indicate the manner in which it is ensured that the indigenous communities concerned participate in the benefits of such activities, in accordance with Article 15(2) of the Convention.

Consultation on exploration and exploitation projects in the Chidima reservation (department of Chocó). Mandé Norte project (departments of Antioquía and Chocó). In the communication transmitted to the Government in October 2011, the IOE had explicitly expressed its rejection of the request made by the Committee in the observation formulated in 2009 to suspend the exploitation and exploration of natural resources until consultations of the indigenous peoples who live in the Pescadito and Chidima reservations and in the Uranda Jiguamiandó reservation are held. In its reply to IOE’s comments, the Government indicated in February of 2012, its intention to comply with the orders of the Constitutional Court in paragraph 7 of the operative section of tutela Ruling No. T-129 of 3 March 2011. The Constitutional Court ordered the Ministry of the Interior and the Ministry of Justice, the Colombian Geological Service (Ingeominas), the Autonomous Regional Corporation of Chocó and the Ministry of the Environment, Housing and Territorial Development to suspend all mining exploration or similar activities, whether legal or illegal, which are being conducted or promoted under concession contracts concluded with any person who might thus affect the Emberá Katío indigenous communities on the Chidima and Pescadito reserves, until such time as the prior consultation process and the search for informed consent from the ethnic communities involved are exhausted. The Committee notes the information sent by the Government concerning the meetings held with a view to creating a rapprochement with the communities concerned. The Committee further notes the statement by the Directorate for Prior Consultation at the Ministry of the Interior that it intends to ensure that each consultation process constitutes an opportunity for the groups concerned to participate in an appropriate, efficient and effective manner in the projects, works or activities which, with their full and informed consent, are due to be undertaken on their ancestral territories. The Committee invites the Government to include information in its next report on the implementation of the orders issued under Constitutional Court tutela Ruling No. T-129 of March 2011 concerning the Chidima and Pescadito reserves. The Committee also invites the Government to include information on the follow-up given to Ruling No. T-769/09 of 29 October 2009, whereby the Constitutional Court granted protection of the right to prior consultation to the communities affected by a licence awarded as part of the Mandé Norte project for mining exploration and exploitation in the departments of Antioquía and Chocó.

Other disputes relating to mining resources. The Committee notes the communication from the CUT received in March 2012 and the Government’s reply received in September 2012, referring to the situation created in March 2006 as a result of lack of consultation when a licence for mining exploitation was granted for the extraction of gold from a rural plot with a surface area of some 99 hectares located in the corregimiento (administrative subdivision) of La Toma in the municipality of Suárez (department of Cauca). The CUT referred to Constitutional Court Ruling No. T-1045A/10 of 14 October 2010 issued in tutela proceedings initiated by the La Toma community council. The Constitutional Court reiterated its jurisprudence in relation to the scope and requirements of the form of prior consultation. The Constitutional Court, among other things, ordered the Ministry of the Interior to conduct, guarantee and coordinate prior consultation and ordered the suspension of mining exploitation activities. The Government indicates in its reply that for reasons of public order it has not been possible to continue with consultations in La Toma. The Committee would be grateful if the Government would provide information in its next report which will enable the Committee to examine the manner in which the rights of consultation and participation provided for in the Convention in cases of exploration and exploitation of natural resources in territories occupied by Afro-Colombian communities have been re-established. The Committee invites the Government to refer to the other disputes mentioned in previous comments and include up-to-date information on any further developments in its next report.

Representativeness. In relation to its previous comments, the Committee notes the information included by the Government in the report received in August 2012 stating that, in the event of any dispute concerning the representativeness of indigenous leaders, it would be the Standing Committee on Consultation which would settle such disputes since this is the national body for consultation in which representatives of indigenous organizations participate. The election processes within the indigenous communities are conducted in accordance with the customs and practices of the communities concerned.