Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the Government’s report received in August 2013 indicating that the most representative employers’ and workers’ organizations analysed the report in line with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and they agreed on the importance of the Convention. The National Employers’ Association of Colombia (ANDI), the International Organisation of Employers (IOE), the General Confederation of Labour (CGT), and the Single Confederation of Workers (CUT) in conjunction with the Confederation of Workers of Colombia (CTC) submitted observations regarding the application of the Convention. 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).

Protection of Raizal small-scale fishers. In a communication received in February 2013, the CGT, on behalf of the Raizal Small-Scale Fishers’ Associations and Groups of the Department of San Andrés, Providencia and Santa Catalina, referred to Judgment No. 124 of 19 November 2012 of the International Court of Justice (ICJ) concerning the territorial dispute between Colombia and Nicaragua. According to the Raizal small-scale fishers’ organizations of San Andrés and Providencia, the judgment has negative implications for traditional fishing. In a communication received in September 2012, the Government explains that traditional fishing sites are precisely located in the vicinity of areas not affected by the ICJ judgment since it is a question of territorial sea and in this respect the ICJ ruled in favour of Colombia. The Government states that fishers from the islands of San Andrés, Providencia and Santa Catalina can continue fishing in the traditional way. The Government sets out the new options for employment and productivity available to the island fishers, and describes the measures taken to support trade, tourism, education and vocational training, and the Raizal communities’ participation in cultural activities. The Committee invites the Government to include in its next report information on the impact of the measures taken to ensure that the Raizal communities have received the protection provided for 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). The Government indicates in the report received in September 2013 that the Ministry of the Interior coordinates and organizes the process for the restitution of lands of the Jiguamiandó and Curvaradó communities. In January 2013 progress was made with regard to: a self-conducted census of the communities; evictions of unauthorized occupants and new settlers; regularization and expansion of collective territory; prevention and protection measures; inter-institutional coordination; peaceful resolution of disputes; and granting of environmental licences. The Committee recalls that in its observation of 2012 it referred to the documents of the National Indigenous Organization of Colombia (ONIC), which had identified the ethnic groups worst affected by violence. The Committee invites the Government to include in its next report information on the implementation of Legislative Decree No. 4633 of December 2011 issuing measures for assistance, care, full reparation and restitution of lands to victims belonging to the Black, Afro-Colombian, Raizal and Palenquero communities. The Committee also invites the Government to continue to take the necessary steps to protect communities that have been subjected to violence, to ensure that all reported occurrences of murders and violence are investigated and that the perpetrators are brought to justice.

Articles 6 and 7 of the Convention. Legislation on consultation. The Government states that a proposal was submitted in October 2012 for a Bill concerning prior consultation but this was rejected by the indigenous organizations represented on the Standing Committee for Dialogue. In February 2013 a summit of indigenous organizations participating in the Standing Committee for Dialogue was held at which they rejected a statutory law in preference for another instrument, possibly a protocol. The Committee notes that the ANDI and the IOE agreed with the Constitutional Court that the Government is obliged to promote “effective and reasonable forums” for participation in matters which directly affect the indigenous communities. However, also agreeing with the guidance of the Constitutional Court, the employers’ organizations consider that if no agreement is reached or any agreement is blocked by an autonomous decision of the peoples consulted, there is no reason to hold back the legislative process or project in matters which are also in the general interest. Referring to its previous comments, the Committee: (i) asks the Government to include information in its next report on the steps taken to establish appropriate mechanisms for consultation and participation in conformity with the Convention, taking account of its general observation of 2010; (ii) reiterates its request to the Government to ensure that indigenous peoples are consulted and can participate in an appropriate manner through their representative institutions in the preparation of such mechanisms, so that they can express their views and affect the outcome of the process; and (iii) invites the Government to provide information on any use made of existing consultation and participation mechanisms pending the adoption of appropriate new procedures.

In a direct request, the Committee asks the Government to include information in its next report on progress made with regard to the protection of human rights and the physical restitution of the territories of Afro-Colombian communities, legislation on consultation, the consultations held by the Directorate for Prior Consultation and the Ministry of the Environment and Sustainable Development, and new developments in various disputes in the departments of Antioquia, Cauca and Chocó.

[The Government is asked to reply in detail to the present comments in 2015.]