Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Honduras (Ratification: 1995)



The Government provided the following written information:

The Government of Honduras hereby informs the Committee on the Application of Standards of the action taken in compliance with Convention No. 169, based on the observations made by the Honduran National Business Council (COHEP) received on 28 August 2015 and supported by the International Organisation of Employers (IOE).

Existing initiatives for the establishment of appropriate procedures for the consultation and participation required by the Convention. Articles 6 and 7 of the Convention. Work is under way with the Inter-Institutional Technical Group on Convention No. 169, which brings together 19 Government institutions, to prepare, implement and monitor a legal instrument on consultation. An initial draft framework Bill on prior, free and informed consultation of indigenous and Afro-Honduran peoples has been prepared, and since 27 May the process has entered the phase of dialogue with indigenous peoples, so that it can then be the subject of dialogue with private enterprise and workers’ associations.

Progress made in the process of regularizing and issuing land title and the surface covered by the land titles issued. Article 14. Lands: Process of regularization in two cases: (a) in the case of Auka, an Intersectoral Committee has been established. It has requested the National Agrarian Institute (INA) to conduct an evaluation of the useful improvements made by non-Misquito peoples for an amount of 1,251,357 lempiras; and (b) in the case of Triunfo de la Cruz, the ruling is final. The INA must demarcate the title areas, and there must be a process of integration between the Garífunas and the peoples within the area. A time frame of two years is set for this work.

Summary of land titles granted during 2015–16: (a) areas for which title has been granted in one indigenous community in Guachipilin, with a total of 1,445.74 hectares covered by land title; (b) areas bought for three communities – Chortí, Plan de Perico, Carrizalon and Chonco: total of 123.55 hectares bought; and (c) areas for which titles are being processed in 2016 in three indigenous communities: total of 93,852.12 hectares to be covered by titles.

Manner in which consultations have been held with the peoples concerned prior to undertaking or authorizing any programme for the exploration or exploitation of the resources pertaining to their lands. Article 15. Natural resources: In the Mosquitia maritime area, with a view to undertaking hydrocarbon exploration, a consultation process was initiated during the period from September to November 2013; ten consultation assemblies were held with the Mosquitia territorial councils. The practice of prior, free and informed consultation has been in place since 2011. Initially it applied to hydroelectric projects located in the Lenca indigenous area (Intibucá and La Paz), covering the Gracias a Dios department and the Awuas, Tikiuraya, Mocorón, Auka, Tipi Lalma, Kukuta, Yahurabila, Raya, Wampusirpe, Barra Patuca, Belén, Brus Laguna and Puerto Lempira communities.

Application of the General Mining Act and procedures established to ensure the right to consultation where the interests of indigenous peoples are likely to be prejudiced. Mining: With respect to mining, the General Mining Act entered into force on 23 April 2013, and concessions granted since that date are still in the exploration phase. None of them is in areas where indigenous peoples or Afro-descendants would be affected. The Act sets out, in Chapter II, Exclusion Zones for Mining Rights, section 48(d), those zones declared to be national heritage sites and zones that UNESCO has declared to be world heritage sites, and in section 50 it establishes the tenure system for land ownership, where it provides that property pertaining to or covered by an international convention or treaty on the rights of indigenous peoples and Afro-descendants must not be affected. Section 67 of the General Mining Act provides that, prior to any decision to grant a concession for exploitation, the mining authority shall make a request to the relevant municipal corporation and the population and must hold a public consultation within no more than six days. The decision taken in the consultation is binding for the granting of an exploitation concession.

Protection in relation to conditions of employment and contracts, and adequate labour inspection of dive-fishing. Articles 20, 24 and 25. Protecting the rights of the Misquito people: Vulnerable groups of disabled Misquito divers who have suffered decompression accidents are dealt with by the Inter-institutional Commission to Address and Prevent the Problems relating to Dive-fishing. Work is under way on the following activities, among others: Preparing the document “Care protocol for decompression patients”, which is at the stage of being signed; on labour matters, dialogue has been held on reforms to the health and occupational regulations on underwater fishing, which is at the stage of the implementation of the Ministerial Order issued by the Department of Labour; A programme of grants for the children of divers with disabilities, covering 33 beneficiaries, is currently being implemented; a project to build 98 homes for divers with disabilities is under way: the overall investment is currently being approved through Convivienda; establishing a trust and identifying productive projects that are generating moderate levels of employment: the Kaukira and Kauma fishers’ union multiple services enterprise, which directly benefits 53 families.

Report in response to the observations of the Single Confederation of Workers of Honduras (CUTH): “The case of the Tolupan people”. Special report by the inter-institutional technical group on Convention No. 169 and free, prior and informed consultation. There is a Government version of the initial draft Bill on prior, free and informed consultation, which has been revised and approved by the Ministry of Labour. It will be submitted for consultation to all indigenous and Afro-Honduran peoples and their organizations, with support from the ILO as an observer, and technical and financial assistance from the UNDP ProDerecho project. The first part of the timetable is:

Date	Place	Indigenous or Afro-Honduran people
27 and 28 May	Catacamas	Pech
30 and 31 May	Juticalpa	Nahua
6 and 7 June	Santa Rosa de Copan	Maya, Chortí

Urgent review of concessions granted without free, prior and informed consultation. In March 1994, the First Regulations of the National System of Environmental Impact Assessment (SINEIA) were issued. These have been supplemented several times. SINEIA 2009 (Decision No.189-2009) officially establishes the consultation mechanism for environmental licensing processes, in which there was no opposition to the establishment of the requirement from the beginning of publication, both in writing and over the radio, with a view to making the development of a project public knowledge. In summary, consultations have been held in accordance with environmental law and the specifics of each project that may be granted a concession as part of these processes.

Urgent revision of concessions granted following free informed prior consultation which are causing damage. In this regard, every registered project file concludes with a decision of acceptance or rejection. If it is viable, the environmental control measures are determined, which have to be implemented by the project proposers or concession holders. In the event of non-compliance, financial administrative penalties exist, ranging from loss of the concession to temporary or permanent closure, depending on the degree of non-compliance.

Compensation for environmental damage, and investigation and penalization of those responsible. MIAMBIENTE has various mechanisms, such as the environmental complaint procedure, the “secure complaints mailbox”, the Line 130 “Your voice counts”, the Inter-institutional Environmental Task Force (FTIA), the Transparency Office, the Complaints System of the Prosecutor’s Office, and the online file consultation procedure (SICU), through which any individuals who feel that they have been affected can have access to the institution to assert their constitutional right of petition and report the relevant facts.

Information on the 18 Tolupan members of San Francisco de Locomapa and their families. On 19 December 2013, by Decision No. 12/2013, the Inter-American Court of Human Rights (IACHR) ordered precautionary measures MC 416-13 for 18 members of the “Dignity and Justice” Movement of the Locomapa Indigenous Community and their families, a total of 38 persons, who were victims of threats to their lives in relation to the murder of Ricardo Soto Medina, Armando Funes Medina and María Enriqueta Medina, members of the Tolupan indigenous community on 25 August 2013 in San Francisco de Locomapa. On 30 August 2013, the court of the city of Yoro, in case 90-2013-7D, issued a warrant for the arrest of Selin Eliazar Fúnez Bonilla and Carlos Roberto Varela Luque for the murder of these indigenous persons. On 22 February 2014, the precautionary measures ordered by the IACHR were implemented with a view to ensuring the return to their communities of the persons who had left their homes on account of the alleged threats. In this connection, a committee was formed composed of a number of state bodies, including the Office of the Attorney General of the Republic, the Office of the Public Prosecutor and of the Special Prosecutor for Ethnic Issues, the Secretariat of Human Rights, Justice, Internal Affairs and Decentralization, and the Secretariat of Security through the Department of Human Rights.

General report on the death of environmental leader Berta Cáceres. Background. Prior to this deplorable act, in February 2014, a request was submitted to open a Permanent Office of the United Nations High Commissioner of Human Rights in Honduras, with a view to contributing to improving the human rights situation in the country. The agreement regarding the opening was formalized on 4 May 2015, as a result of which the appointment of the country representative is now pending. Berta Cáceres Flores was a leader of the Lenca indigenous community, one of the largest ethnic groups in the country. In 1993, she co-founded the Civic Council of Peoples’ and Indigenous Organizations of Honduras (COPINH) to combat the privatization of rivers and the hydro-electric dam projects with foreign investment. In 2015, she was the winner of the prestigious Goldman Environmental Prize. On 3 March, she was murdered in her home, having previously received various threats.

Murder of the environmental leader. This appalling murder was committed at the leader’s home in the El Líbano residential area, which has its own security system. However, according to the Secretariat of Security, this was a different address from that agreed as the location for Cáceres to receive protection, which was originally in the El Calvario district. The investigation found that in the early hours of the morning a vehicle had parked opposite the residence where the crime was committed and sped away several minutes later.

Investigation. The President of the Republic, Juan Orlando Hernández, has stated emphatically that the murder of Berta Cáceres, a leader who had distinguished herself at the national and international levels and had fought courageously for Honduras, constituted a direct crime against Honduras and a major blow to the Honduran people. All of the Honduran security forces took action as soon as the murder became known. The national police, the teams of the Director of Intelligence and Investigations, the Public Prosecutor’s Office, the Technical Agency for Criminal Investigation and the Director of Police Investigations are all engaged in identifying the perpetrators and bringing them to justice. The investigation is under way and will be reinforced as much as necessary. The President of the Republic has instructed the Secretariat for Security to put the Violent Crimes Unit onto the case and to work in coordination with it, possibly with the support of other countries that wish to help it identify the perpetrators and bring them to justice. The Special Investigator for Ethnic Affairs is leading the process of taking statements and conducting its own investigation. A team of experts from the United States has joined the investigation. On 6 March, on behalf of the State of Honduras, the President of the Republic requested the Office of the United Nations High Commissioner for Human Rights (OHCHR) to support the entire investigation into Berta Cáceres death. An affirmative reply was received from the OHCHR on 11 March, with an undertaking to provide technical advice in accordance with its methodology and mandate.

Results. On 2 May, the Public Prosecutor’s Office apprehended five suspects in this abominable crime, including its intellectual and material instigators, who by court ruling have been placed in preventive custody in the National Penitentiary. Judging from the scientific evidence compiled so far, it is likely that the remaining suspects and instigators will be definitively identified and detained and that the circumstances surrounding this horrendous crime will be clarified.

Conclusions. In addition to opening a Permanent Office of the OHCHR in Honduras, the Government has demonstrated its commitment to human rights through its promotion of the National Human Rights Policy and Plan of Action, which in recent years it has pursued with dedication as a matter of priority. In addition, it has opened its doors to systematic monitoring of human rights in the country by inter-American and universal bodies. The Universal Periodic Review (UPR) second cycle in 2015 and the adoption of its recommendations is further evidence of the commitment of Honduras in this area. The ILO and both national and international public opinion are being kept informed of developments in the investigation, which the competent courts have declared to be of a confidential nature.

In addition, before the Committee, a Government representative drew the attention of the Committee to the information provided in the written statement.

The Employer members emphasized that the Committee was examining for the first time the application by Honduras of this Convention, which it had ratified in 1995. Moreover, there had not been to date, registered any representations under article 24 of the ILO Constitution. They said that over the 20 years that the Convention had been in force, the Government had not been able to implement the necessary regulations on prior consultation, which was at the heart of the Convention. They noted with concern that certain government officials and indigenous leaders considered that prior consultation had a binding effect and that it bestowed a right of veto. This interpretation had led to the use in elections of community decision-making mechanisms contained in municipal laws allowing for decisions to be taken at this level. They affirmed that the concepts and mechanisms previously referred to were diametrically opposed to the spirit and letter of consultation within the meaning of Article 6 of the Convention, namely through appropriate procedures, and in particular through the representative institutions of the indigenous peoples, in good faith and in a form appropriate to the circumstances. Prior consultation therefore consisted of an exercise of dialogue carried out with the aim of reaching agreements on those issues which were likely to directly affect indigenous peoples. They said that the absence of legislation which adequately set out the form of the consultation process on the basis of the above points, resulted in errors, as previously indicated, generated a lack of certainty, acted as a disincentive to productive investments, and caused the arbitrary failure to grant mining permits across the country. National legislation should place particular importance on implementing Article 15 of the Convention, which regulated the right of indigenous peoples to the existing natural resources and their participation in their use, management and conservation. In Honduras, both the subsoil and the water, and to a certain extent the forest resources, were by law the property of the State. Thus, and in conformity with the above provision, indigenous peoples should receive fair compensation for any damages which they might sustain as a result of such activities. On that basis, the Employer members considered it imperative that the Government, in consultation with the social partners, should in good faith regulate consultations to be held in conformity with the Convention.

The Employer members said that they had been informed by the employers’ organization of Honduras of the hiring of a greater number of labour inspectors in the coffee growing and Misquito regions in the country with a view to ensuring better working conditions for workers covered by the Convention. With regard to Misquito divers, who worked in the informal economy and lacked minimum occupational safety conditions, the Employer members emphasized the need to develop vocational training programmes and occupational safety and health programmes, and to consider establishing health centres in the region. They also indicated that they had been informed of recent reforms to the social security system, the first level of which was being made universal, which would enable coverage of the entire Honduran population, including indigenous peoples. They commended the granting of titles to lands between 2012 and 2015 for the benefit of the Lenca, Chortí, Misquito and Garífuna peoples, as well as the inter-community land title process for the Misquito people.

Finally, they raised questions concerning the request by the Committee of Experts to the Government in relation to Article 15 of the Convention. Referring to the difficulties caused by similar statements in the 2009 report of the Committee of Experts, they were of the view that it was not within the mandate of the Committee of Experts to request information on the manner in which consultations were held prior to undertaking or authorizing any programme for the exploration or exploitation of existing resources.

The Worker members emphasized that, since the 2009 military coup d’état in Honduras, death threats, murders and the systematic persecution of human rights defenders and trade unions had become widespread. After her visit to the country in November 2015, the United Nations Special Rapporteur on the rights of indigenous peoples had expressed her deep concern “about the general environment of violence and impunity affecting many indigenous communities”. Observing that a fundamental problem faced by indigenous peoples was the lack of full recognition, protection and enjoyment of their rights to their ancestral lands, territories and natural resources, the Special Rapporteur had stated that “[e]ven in cases when indigenous peoples have titled lands, these are threatened by competing and overlapping titles to third parties, natural resource development projects in the extractive and the energy sectors, charter cities, tourism projects and protected areas”. The Worker members expressed regret at the murder of Berta Cáceres, an environmental activist and indigenous leader of international renown, recognized for her struggle to defend the Lenca people against the Agua Zarca hydroelectric dam project, funded by the Council of Indigenous and Popular Organizations of Honduras (COPINH). Noting that three other COPINH activists had also been murdered, they recalled that the Inter-American Commission on Human Rights had asked the Honduran State to guarantee protection for Berta Cáceres, as well as the safety of other members of COPINH who had received numerous documented threats. Similarly, they reaffirmed that the attacks on the Lenca people were part of a pattern of generalized violence directed against many other indigenous peoples in the country. In recent decades, the accelerated process of expanding palm oil plantations had had profound social and environmental repercussions for the rural Afro-Honduran population, as well as for the indigenous Garífuna people, who represented the largest ethnic minority in Honduras, with many disputes arising as a result. They recalled, for example, that in August 2015 a police contingent had invaded the territory of the Garífuna community in Nueva Armenia, arresting 40 people and bringing legal action against some 80 members of the indigenous community for “land seizure”. According to witnesses present, palm oil producers had burned down 11 homes. Some months later, a group from the same community had been the victim of an armed attack by unknown perpetrators. In addition, in May 2015, Garífuna leader Jessica García had been the victim of an attempted kidnap. In December 2015, the Inter-American Court of Human Rights had found Honduras responsible for violations of the right to consultation in respect of Garífuna communities in two cases. The Worker members regretted that large-scale mining projects had become a considerable threat to the full exercise of the rights enshrined in the Convention. In 2003, the entry into force of the General Mining Act had lifted a moratorium of seven years on any new mining projects in response to the pressure of public opinion, completely marginalizing indigenous peoples. More than 20 sections of the General Mining Act violated the laws and Constitution of Honduras, as well as various treaties ratified by the Honduran State, including the Convention. For example, only the communities affected needed to be consulted before an extraction licence could be granted, which ran counter to the constitutional principles of popular sovereignty, self-determination of peoples and participatory democracy. This also undermined the indigenous rights enshrined in the Convention and in the United Nations Declaration on the Rights of Indigenous Peoples, including the right to free, prior and informed consultation, the right to oppose unwanted projects and the right to organize through their own representative bodies. Moreover, under the Mining Act, prior consultation of all communities concerned within the entire area affected by a project was not required. Furthermore, the Act imposed restrictions on public participation and contradicted provisions on environmental conservation by prohibiting the creation of zones free of mining exploitation for a specific period. They expressed profound regret that, despite repeated calls, recommendations and rulings from the Inter-American system and United Nations bodies, including the ILO, the Government had not demonstrated its commitment to dealing with issues affecting the country’s indigenous peoples. They supported the request by the Committee of Experts for information to be provided concerning a range of pertinent issues and urged the Conference Committee to make specific recommendations regarding the application of the Convention, including specific protection mechanisms for those defending the rights of indigenous peoples and the peoples themselves.

The Employer member of Honduras recalled that the COHEP had indicated in its observations accompanying the report on the application of the Convention that, for the National Congress of Honduras to adopt any legal instrument, the participation of the social partners, and particularly that of employers, would be necessary. Furthermore, the concept of “free and informed prior consultation” had been misinterpreted in cases where it had been considered to include the right of veto or to be binding on the administrative or judicial authorities in their decision-making. On the other hand, he recalled that, in accordance with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), employers had to be included in the legislative consultation process and that it was necessary to ensure that procedures were appropriate, public, transparent and initiated by the State, and that all the relevant actors participated. Dialogue and public consultation processes currently took the form of open consultations in the municipalities, but there was no law governing the procedure across the whole country, which created legal uncertainty and insecurity concerning state and municipal property, on the one hand, and private property, on the other. He welcomed and praised the Government for the land titles it had issued to indigenous, Afro-Honduran and Ladino peoples, as well as to other people across the country, through the Property Institute and the National Agrarian Institute.

Concerning the observation of the Committee of Experts on the application of Article 15 of the Convention, he recognized the need to define in advance the procedure in law. As few mining companies had arrived in the country, small-scale mines had proliferated. The application of the General Mining Act currently in force was rigorous and costly. Licences were not always granted, and even with a licence some uncertainty remained because public officials did not always respect deadlines and conditions once contracts had been signed. Emphasizing that the consultations held on the Convention were not pro forma, he reiterated that they did not imply a right to veto and that the obligation to guarantee adequate consultations lay clearly and explicitly with governments, and not with individuals or private enterprises. With respect to the application of Articles 20, 24 and 25 of the Convention, the Government had approved and brought into force on 4 September 2015 a social protection framework law which provided for universal coverage for all citizens. This would be reflected in the new Social Security Act and the National Health System Act, both of which were currently being examined by the Economic and Social Council (CES), a tripartite dialogue body. Recognizing the need for the Convention to be applied correctly and for ILO technical cooperation for this purpose, he called for the adoption of a law on prior consultation which set out clear and transparent procedures, to be followed in good faith, taking into account the specific conditions of the country.

The Worker member of Honduras said that no proper measures had been adopted since 1995 to ensure the effective application of the Convention. He denounced the fact that lack of protection and respect for the rights of indigenous peoples had given rise to countless socio-environmental disputes, many evictions from land and the persecution and murder of indigenous leaders. The development policy of the State of Honduras prioritized investment in the extractive and hydroelectric industries at the expense of violations of the rights of indigenous peoples, the destruction of the environment, the violation of human rights and the persecution and criminalization of indigenous leaders. There were many cases that demonstrated the systematic violation of the rights of indigenous peoples and the lack of application of the Convention. He referred to the process that led to the adoption of the Property Act in 2004, in the absence of appropriate consultation of the indigenous and Afro-Honduran peoples. That Act allowed the cancellation of community titles issued by the State of Honduras and had been used to split up community territories. He referred to the rulings of the Inter-American Court of Human Rights in the cases Garífuna community of Triunfo de la Cruz and its members v. Honduras and Punta Piedra Garífuna community and its members v. Honduras, in which the State had been found guilty. Furthermore, the report of the United Nations Special Rapporteur on the rights of indigenous peoples highlighted the critical situation of the indigenous peoples of Honduras in unequivocal terms. He observed that some cases had not even been of public knowledge, such as the approval of the Masca hydroelectric dam without consultation, the disregard of the consultation held with the Garífuna community concerning the Property Act, the declaration of the Cayos Cochinos as a protected area without consultation, the construction of the Patuca III hydroelectric dam without consultation and the preliminary draft of the law on consultation which had deliberately excluded representative indigenous organizations.

Regarding the alarming and generalized situation of persecution and criminalization of defenders of the indigenous peoples, he said that the murder of Ms Berta Cáceres was a landmark case. Ms Cáceres had been persecuted and prosecuted, and had received death threats on many occasions. At the time of her death, she benefited from protective measures which had been requested by the Inter-American Commission on Human Rights. The situation of Ms Cáceres, as well as the violations of the human rights of 13 Tolupan tribes and other Garífuna and Lenca communities, had already been brought to the attention of the ILO in 2015. He profoundly regretted the deaths of Maria Enriqueta Matute and of Nelson García, Armando Fúnez Medina, Ricardo Soto Fúnez, Luis Reyes Marcia and Erasio Vieda Ponce, leaders and members of indigenous communities. He observed that over the past ten years at least 111 environmental activists had been murdered for defending indigenous and Garífuna communities. In his view, the level of corruption and ineffectiveness of the justice system made it impossible to guarantee the protection of human rights activists. He expressed the hope that the Conference Committee would reach conclusions that would enable the Government to adopt measures urgently to put an end to the grave situation of widespread violation and impunity (including the establishment of specific protection mechanisms for the defenders of indigenous peoples’ rights) and to ensure complete observance of the Convention, with the full participation of the most representative employers’ and workers’ organizations. In coclusion, he called for an ILO mission to visit Honduras with a view to monitoring and verifying compliance with the relevant agreements.

The Government member of Mexico, speaking on behalf of the group of Latin American and Caribbean (GRULAC) countries, thanked the Government for its report on Convention No. 169. He regretted the violent death of the environmentalist leader Berta Cáceres and urged the Government to continue its efforts to solve the crime. He also noted with interest the report on the investigation into the facts and recognized the progress made, which had not been reflected in the report of the Committee of Experts. He noted with interest the efforts made to adopt a consultation procedure rapidly, as well as the Bill on which consensus was already being sought with organizations of indigenous peoples, private enterprises and workers. He recognized the Government’s efforts for the distribution of land ownership, the application of the Mining Act, the protection of the Misquito people and social security for indigenous peoples.

The Government member of Panama said that his country endorsed the statement made by GRULAC and the report submitted by the Government of Honduras. He noted the efforts made and commended the drafting of a bill, which was in the process of being agreed to with indigenous organizations, employers and workers. He congratulated the Government on granting title for over 1 million hectares of land, benefiting 9,459 families and 175 communities. He also congratulated the Government on keeping the channels of consultation open, including the Inter-institutional Commission to Address and Prevent the Problem of Dive-fishing (CIAPEB). As pro tempore chair of the Council of Ministers for Central America and the Dominican Republic, he reiterated his Government’s concern at the inclusion of Honduras, Guatemala and El Salvador in the list of individual cases. He considered that objective and transparent selection criteria were lacking that would allow the reasons for their inclusion to be identified, especially when the regional distribution revealed an imbalance in comparison with individual cases from other regions.

The Worker member of Colombia noted that the obligation of prior consultation was not effectively applied in Honduras, and that there was no direct connection between environmental licences issued and the prior consultations held. In Latin America, disputes concerning the exploitation of natural resources on indigenous land were becoming ever more frequent. States granted extraction companies concessions to operate on land belonging to indigenous peoples without taking into consideration the manner in which such activities affected those peoples’ way of life. Countries such as Honduras claimed that investments in mining and oil, for instance, contributed to national development, yet indigenous peoples rarely saw the benefits. In the case of Honduras, there were at least three characteristics that the Committee should not overlook: (i) the binding nature of Convention No. 169 was being challenged; (ii) laws on prior consultation were being drafted without true participation by indigenous communities; and (iii) the human rights of environmental leaders were constantly being violated. He expressed deep concern regarding the death of indigenous leader Berta Cáceres and the constant persecution and deaths of human rights leaders in Honduras. He urged the Government to comply with the Convention and protect the lives and physical integrity of indigenous leaders.

The Worker member of Uruguay expressed solidarity with the Honduran people in the light of the grave accusations made. He condemned the murder of Berta Cáceres and recalled that one of her great struggles had been defending Lenca territory through respect for the consultations envisaged in Convention No. 169 and the application of the Convention. He emphasized that prior consultation meant taking the opinions of civil society organizations into account. He added that extraction policies and so-called “charter cities” had been imposed in Honduras without consultation and in the most deregulated manner. He referred to reports of corruption in the police and armed forces, the murder of more than 100 social campaigners in recent years, the fact that some neighbourhoods and towns were in a state of utter abandon and the constant criminalization and persecution of union leaders.

The Government member of Norway noted that there seemed to be uncertainty concerning appropriate procedures for the consultation and participation required by the Convention. Therefore, recalling that Norway had been the first country to ratify Convention No. 169, he shared some of the experiences of his country, in particular the establishment in 1989 of the Sami Parliament as the representative political body of the Sami people, the indigenous people of Norway. He said that the Government and the Sami Parliament had agreed on procedures on how to carry out consultations in accordance with the Convention and that the Government had issued procedures for consultations by state authorities with the Sami Parliament, which were framed within the context of Norway’s obligations under the Convention and respected indigenous peoples’ substantial rights, including the right to land. Explaining that consultation was conceptualized as a continuous process through the establishment of regular and institutionalized dialogue mechanisms between the State and the Sami Parliament on various issues that might affect Sami interests, including competing use of land and land rights, he said that such an approach gradually built up trust and fostered collaborative relations. While acknowledging that agreement between the Sami Parliament and the Government was not always reached, he emphasized that the consultation mechanism enabled the Sami Parliament to strengthen its position as a representative and competent voice of the Sami people and ensured that that decision-makers were well acquainted with the views of the Sami Parliament. He expressed the hope that the experience of Norway would inspire other countries to ratify and implement Convention No. 169.

The Worker member of the Bolivarian Republic of Venezuela considered that the application of the Convention should not be limited to certain articles that suited the convenience of national and transnational private enterprises with the support of the Honduran Government. Consultation could not be ignored as a mechanism to enable indigenous peoples to take decisions concerning the land pertaining to them, and their use. The COHEP was endeavouring, with the support of the Government, to establish a law that flew in the face of the Universal Declaration on the Rights of Indigenous and Tribal Peoples and dismissed Convention No. 169, with the objective being to take ownership of appropriating the resources in the 1,032,793.18 hectares belonging to the Lenca, Chortí, Misquito and Garífuna people. In addition, he condemned the persecution, torture, disappearance and murder of indigenous and social leaders, such as Berta Cáceres. He requested the Committee to send an ILO mission to monitor the implementation of the Convention.

The Worker member of the United States explained that, as part of a delegation of the Trade Union Confederation of the Americas visiting Honduras shortly after the assassination of Berta Cáceres, he had witnessed the lack of will on the part of the Government to build trust and dialogue with indigenous communities. In violation of Honduran law, the Office of the Public Prosecutor had even ignored over a dozen legal filings by victims and their families. Since the 2009 coup d’état, the level of violence, corruption and distrust had prevented the consultation and consensus-building required by the Convention, which should include participation in the formulation, implementation and evaluation of plans and programmes affecting the communities. There was however consensus on the urgent need for a law to apply the Convention, and two bills were currently before Congress. They provided an opportunity for the Government to begin constructing peace and reducing conflict. The ILO could assist in the process to ensure that it was in conformity with there requirement for consensus and respect for indigenous communities, in accordance with the Convention.

The Employer member of Chile reiterated the call made by the COHEP for the Honduran Government to introduce prior consultation with indigenous peoples and social actors and establish a legal framework to govern consultation with indigenous peoples, as provided for in the Convention. He believed that this would contribute to the recognition of the rights and obligations of all the parties involved in the application of the Convention, which would have positive consequences for the sustainability and legal security of investment projects. He recalled that any regulations must categorically establish that the obligation to hold consultations with indigenous peoples lay with the State, clearly providing that consultations must be held in good faith, with proper information and with the objective of reaching agreement, but without the result of the consultations being binding. He observed that the Convention should be a tool for social dialogue with indigenous peoples, and it was necessary to reset the temptation to use it for purposes other than those for which it was intended. He expressed concern at the request by the Committee of Experts for information on consultations held prior to the implementation or authorization of programmes involving the exploration or exploitation of resources pertaining to the lands of indigenous peoples, which exceeded its mandate. He recalled the difficulties that had arisen when the 2009 report of the Committee of Experts had been published. Lastly, he recalled that it was necessary to advance through dialogue towards giving effect to the Convention, which would constitute the best guarantee of its provisions being interpreted and applied in a balanced manner.

The Worker member of Spain said that the Government was seriously and systematically failing to comply with the Convention. Indigenous communities were regularly subjected to exploitation, repression, lack of access to justice and the occupation of their land without their free consent. Their representatives were victims of threats, violence, criminalization and murder. Since the military coup in 2009, the situation had become more widespread and had only deteriorated. At the same time, greater protection was being given to the interests of transnational enterprises that promoted hydroelectric, mining, forestry and agricultural projects, despite the fact that they did not respect the legitimate interests of indigenous peoples. The case of the murder of Berta Cáceres, an internationally recognized defender of human rights and the environment and an indigenous leader, was symptomatic. She had been murdered in March 2016 after fighting for many years against the construction of the Agua Zarca dam in the Gualcarque River. Those responsible for her murder remained unpunished, as did those responsible for the murders of other indigenous leaders. The case of the Agua Zarca dam was a clear example of the persecution and criminalization of pro-indigenous activism and the manner in which indigenous peoples were not consulted on projects that affected their land. It was necessary to eliminate privilege, favourable treatment, non-transparency and restrictions on democracy in order to prevent, investigate, prosecute and punish those responsible for human rights violations. She urged the Committee to help ensure that Honduras gave immediate effect to the Convention.

The Government member of the Dominican Republic endorsed the statements of GRULAC, the Council of Ministers of Central America and the Dominican Republic. She expressed support for the report provided by the Government on the Convention. She recognized the efforts that the Government was making to guarantee protection for fundamental rights at work and social security for indigenous peoples. She expressed regret at the death of environmental leader Berta Cáceres and urged the Government to continue its efforts to guarantee respect for international labour standards. She called on the Government, workers, employers and indigenous peoples to join forces for this purpose.

The Government member of El Salvador supported the statement of GRULAC and expressed appreciation of the report presented by the Government on the Convention. She welcomed the information provided, which demonstrated the Government’s will to establish in the near future an appropriate consultation procedure, as shown by the Bill, on which a process of consultation had commenced with indigenous peoples organizations, private enterprise and workers. She noted with appreciation the indication by the Government that it would continue its efforts towards compliance for the clarification and granting of land title, the application of the Mining Act, the protection of the Misquito people and the provision of social security for indigenous peoples.

The Government representative referred to the progress that had been reported to the Committee of Experts. He also referred to the creation of a trust for productive projects, the development of a protocol for the treatment of divers suffering from the effects of decompression and the dialogue on reforms to the regulations on occupational safety and health in dive-fishing. He recalled that a Bill on free informed prior consultation was before each of the indigenous and Afro-Honduran peoples for consultation, and that employers and workers would then be consulted. He requested ILO technical assistance for that purpose. He reiterated that his Government condemned the murder of Berta Cáceres and he expressed condolences to her family and the Honduran people. He emphasized that acts of violence were not and would not be tolerated, in particular against human rights defenders. He recalled that judicial officials had reacted swiftly and decisively in the case of Berta Cáceres, instigating the detention and prosecution of the alleged perpetrators. He noted that the State of Honduras had demonstrated its commitment to human rights protection by adopting the national human rights policy and action plan and requesting the Office of the United Nations High Commissioner for Human Rights to open a country office. He also noted the successful social dialogue on, for example, the Labour Inspection Convention, 1947 (No. 81), and he invited employers’ and workers’ organizations to discuss an action plan for the application of the Convention in the Economic and Social Council.

The Worker members said that Honduras was living under the constant threat of death. Social and union leaders were murdered and persecuted, and the situation was worse for indigenous peoples. There was a situation of violence perpetrated by the State and by individuals protected by the police, with no guarantees for the rights or the lives of victims, or their families. Private enterprises threatened the lands of indigenous peoples, and their very survival through exclusion and isolation. The Government was also complicit in seizure processes, in which indigenous peoples were denounced as seizing their own lands. Various sectors, including the palm oil industry, infrastructure construction, mining projects and individual producers, enjoyed impunity in Honduras when trampling underfoot the rights of indigenous communities. In their view, the Committee should urge the Government to take the following measures: (i) with respect to violence against indigenous peoples, guarantee the immediate launch of independent judicial investigations to identify and punish those responsible, including an independent investigation into the murder of Berta Cáceres by a group of experts under the authority of the Inter-American Commission on Human Rights; (ii) effectively apply the right to consultation, ensuring full and effective participation by all indigenous peoples, taking into account the indication by ILO bodies that a mere information meeting in which indigenous peoples were heard, without the opportunity to influence decision-making, did not comply with the provisions of the Convention; (iii) review all the concessions granted on indigenous territory without the prior consent of the communities affected, including for hydroelectric dams, mining operations, agribusiness and forestry megaprojects; and (iv) with technical assistance from the ILO, carry out a review of the General Mining Act with a view to making the necessary amendments to bring it into line with the Convention. Finally, they called on the Committee to consider the possibility of sending a direct contacts mission to the country.

The Employer members thanked the Government for the information provided. They considered it necessary to require the Government to take the following steps as a matter of urgency: (i) in consultation with the social actors and interested peoples, legislate the right to consultation set out in Convention No. 169; (ii) report on progress in the process of granting land title to indigenous peoples, giving details of the geographic areas allocated; and (iii) report on the programme for recruiting more labour inspectors in the coffee and Misquito zones and the results obtained in terms of improving working conditions for indigenous peoples in such zones.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee expressed concern at the lack of progress on the necessary regulatory framework for prior consultation.

Taking into account the discussion of the case, the Committee urged the Government to:

• - ensure the implementation of the Convention in a climate of dialogue and understanding, free from violence;
• - regulate, without delay, in consultation with the social partners and in accordance with Article 6 of Convention No. 169, on the requirement to consult indigenous peoples, so that such consultations are held in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures. To this end, the Government can avail itself of technical assistance from the ILO;
• - inform the Committee of Experts at its next session on the progress made in the implementation of the Convention in law and practice, including the General Mining Act.

The Government representative took note of the Committee’s conclusions and recommendations and said that they would be transmitted to the highest authorities so that they could be implemented as soon as possible.