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

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

Article 1 of the Convention. Self-identification. The Government indicates in the report received in August 2013 that in recent years, by way of follow-up to an unprecedented movement, the Directorate for Indigenous, Roma and Minority Affairs (DAIRM) has recognized and registered various communities which have been submitting claims for recognition as new indigenous peoples. The Committee notes with interest that, in the context of the National Committee for Dialogue with the Indigenous Peoples, the Government has undertaken to recognize and register indigenous peoples that have not yet been recognized. The Government explains that this involves work in several phases with the interaction of ethno-historians, lawyers and anthropologists in order to implement the requirements of the National Development Plan 2010–14. The Committee invites the Government to continue providing information on the manner in which new indigenous peoples are included within the scope of the Convention and are protected by measures intended to give effect to it.

Article 2. Coordinated and systematic action to protect the physical, social, cultural, economic and political integrity of indigenous and Afro-Colombian communities. Further to a request made in the observation of 2012, the Government sent the “Guide for the application of the preventive policy of the Office of the Prosecutor-General concerning the rights of ethnic groups with respect to protection of the fundamental right to free and informed prior consultation”, published in April 2011. The Committee also notes with interest the objectives and principal actions of the DAIRM and the inter-institutional dialogue for strengthening relations with the Afro-indigenous community of the department of Chocó, which also includes the participation of the Ministry of Labour. The Government includes up-to-date information on the operations involving the participation of the Ministry of National Defence undertaken in 2012 further to the orders handed down by the Constitutional Court in January 2009 safeguarding 34 indigenous peoples. The Committee invites the Government to continue providing information in its next report to enable it to evaluate progress made in relation to the ethnic safeguarding of 34 indigenous peoples. The Committee would be grateful if the Government would include in its report a summary of any actions of the Office of the Prosecutor-General that have contributed to giving effect to the Convention.

Article 3. Human rights. 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 of December 2011 issuing measures for assistance, care, full reparation and restitution of territorial rights to victims who are members of indigenous peoples and communities, the participation of representatives of these communities and the manner in which adopted measures have contributed towards restoring the rights established in the Convention.

Articles 6 and 7. Other draft legislation. The Government indicates that it is planned in 2013 to hold prior consultations on important legislative and administrative measures, such as the decree to establish regulations for implementing the Andean Community Decision and the national law concerning access to genetic resources and related traditional knowledge. The Committee notes that the Land and Rural Development Bill, the reform of the Mining Code and the reform of regional autonomous corporations were on the agenda of the Standing Committee for Dialogue. The Committee invites the Government to include information in its next report that will enable it to examine the manner in which the peoples concerned have been consulted and have expressed views that can affect the outcome of the consultation process on the abovementioned draft legislation.

Article 15. Consultation before undertaking or authorizing any programme for the exploration or exploitation of resources on indigenous territories. The International Organisation of Employers (IOE) and the National Employers’ Association of Colombia (ANDI) indicate that the Ministry of the Environment and Sustainable Development will establish the requirements, procedures and time frames for holding public hearings on environmental licences. The Committee invites the Government to include up-to-date information in its next report on the consultations held during the period covered by the next report by the Directorate for Prior Consultation and the Ministry of the Environment and Sustainable Development with a view to authorizing programmes for the exploitation of resources. Please also indicate the manner in which it is ensured that the indigenous communities concerned participate in the benefits of such activities (Article 15(2) of the Convention).

Consultation on exploration and exploitation projects in the Chidima reservation (department of Chocó). Mandé Norte project (departments of Antioquia and Chocó). In reply to the comments which the Committee has been raising for many years, the Government states that in April 2013 a meeting coordinated by the Directorate for Prior Consultation was attended by members of the communities from the Chidima Tolo and Pescadito indigenous reservations, accompanied by the governor of the Cabildo Mayor (council) of the area, and other interested parties. At the meeting the indigenous communities indicated that they needed substantive information on the subject of prior consultation and the project concerned in order to exercise their fundamental right to prior consultation. The Municipal Council considered the provisions of tutela Ruling No. T-129 of 3 March 2011 and the fact that the indigenous communities had voiced their opposition to the construction of a road on their territory and the decision was taken to change the course of the road. The Committee notes with interest that the Directorate for Prior Consultation verified that the new course of the road would not affect the territory of the indigenous communities. The Government also reports that in April 2011 the Directorate for Prior Consultation asked the Ministry of the Environment and Sustainable Development for copies of the scientific studies on the impact of the licence awarded as part of the Mandé Norte project for mineral exploration and exploitation. The Committee refers to its 2009 observation and invites the Government to include information in its next report on the follow-up given to Ruling No. T-769/09 of 29 October 2009, whereby the Constitutional Court granted protection to 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 Antioquia and Chocó.

Other disputes relating to mining resources. The Committee referred in its observation of 2012 to the situation that resulted in March 2006 from a 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). In its observations of March 2012, the Single Confederation of Workers (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, 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 Committee would be grateful if the Government would provide information in its report to 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, such as the situation in the corregimiento of La Toma, and include up-to-date information on any further developments in its next report.

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