Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Nicaragua (Ratification: 2010)

The Committee notes the information provided by the Government in reply to its comments on Articles 16, 17 and 19 of the Convention.

Articles 2, 7 and 33 of the Convention. Coordinated and systematic action. Development. In its previous comments, the Committee requested the Government to provide information on the development plans and strategies for the Caribbean Coast and Alto Wangki and to indicate the manner in which the participation of the peoples concerned is ensured in the case of the programmes implemented outside the sphere of the autonomous regions. The Government indicates in its report that, within the autonomous regime of the Caribbean Coast, multisectoral committees have been created to promote and implement coordinated strategic plans, in which indigenous peoples and peoples of African descent represented by their territorial or communal authorities participate, as well as regional, municipal and national government representatives. The Government adds that consultations are being carried out to adopt the short- and medium-term budgetary framework to address the territorial development claims of indigenous peoples and peoples of African descent. The Committee notes that one of the key aspects of the National Human Development Programme (2018–21) is the socio-economic welfare of indigenous communities and communities of African descent as part of the process of restoring the rights of the Nicaraguan Caribbean, through initiatives aimed at promoting their culture, consolidating the model for securing community property, the building of their productive capacities, and the strengthening of their health and intercultural education systems. The Committee requests the Government to provide information on the policies and programmes for indigenous peoples and peoples of African descent which have been implemented under the National Human Development Programme, and which have contributed to the fulfilment of the rights enshrined in the Convention. It also requests the Government to include examples of the decisions adopted with the participation of indigenous communities and communities of African descent in the multisectoral committees created with the autonomous regime of the Caribbean Coast. The Committee also once again requests the Government to indicate the manner in which the participation of the peoples concerned is ensured in the case of the programmes implemented outside the sphere of the autonomous regions.

Article 6. Consultation. Representative institutions. In reply to the Committee’s request for examples concerning the operation of the consultation procedures, the Government refers, among other measures, to the establishment of a forum for ongoing dialogue with the government of the Mayangna Nation, with the aim of determining actions for the strengthening of the autonomy and the institutions of the indigenous Mayangna peoples. The Committee recalls that, in accordance with the Act on Municipalities (Act No. 40), all municipalities are required to take into account indigenous peoples in decisions that affect directly or indirectly their population or territory. The Committee requests the Government to provide detailed information on the functioning of mechanisms for prior consultation with indigenous peoples on legislative and administrative measures that affect them directly at the municipal and national level, and within the sphere of the autonomous regions. It also requests the Government to provide examples of consultation procedures that have led to the conclusion of agreements with indigenous communities and communities of African descent.

Article 7(3). Studies on the environmental impact of development activities. In its previous comments, the Committee noted the provisions of the environmental legislation concerning the declaration of protected areas and the implementation of scientific studies on the lands of indigenous communities. The Committee notes the adoption, in November 2017, of Decree No. 20-2017 establishing the system for the environmental assessment of permits and authorizations for the sustainable use of natural resources. The Decree provides for the creation of inter-institutional commissions for the environmental assessment of projects, which will comprise representatives from sectoral environmental management units, autonomous government bodies, municipal governments, secretariats for natural resources and the environment, and territorial offices of the Ministry of the Environment and Natural Resources. The Committee requests the Government to provide information on the manner in which indigenous and tribal peoples participate in the activities of the inter institutional commissions established by Decree No. 20-2017, with regard to the assessment of the social, spiritual, cultural and environmental impact that development projects may have on the territories and collective rights of such peoples.

Articles 8, 9 and 12. Customary laws. Legal proceedings. In reply to the Committee’s previous comments, the Government refers to the Family Code (Act No. 870), adopted in 2014, which recognizes the community structure of indigenous peoples and peoples of African descent, and their right to preserve, maintain and promote their own family systems. The Government indicates that a process of revitalizing the traditional justice model in Alto Wangki Bocay was initiated with the cooperation of the President of the Republic, the Supreme Court of Justice and the territorial government of Alto Wangki Bocay. In the framework of this process, mechanisms for coordination and cooperation between local and civil judges were developed, and defenders of indigenous peoples were appointed. The Government also refers to the process of building the capacities of community judges for indigenous peoples. The Committee requests the Government to provide detailed information on the mechanisms implemented to ensure coordination and cooperation between community judges and local and civil judges, including examples of their application. It also requests the Government to provide updated information on the number of cases defended by defenders of indigenous peoples in autonomous regions and other departments of the country. The Committee also reiterates its request for information on the application of section 20 of the Criminal Code which allows for offences committed by members of indigenous peoples of the Caribbean Coast for which the penalty does not exceed five years in prison to be tried in accordance with customary law.

Article 15(1). Natural resources. The Committee notes the Government’s indication that several instruments were adopted to regulate the conservation and use of natural resources in the traditional territories of the Wangki Twi/Tsaba Raya, Amasau, Tawira, Karatá and Miskito indigenous peoples. The Committee notes that, according to the report of the United Nations High Commissioner for Human Rights, published in July 2018, entitled “Human rights violations and abuses in the context of protests in Nicaragua”, a fire broke out in the Indio-Maíz Biological Reserve, which includes areas inhabited by the Rama Creole indigenous communities. The Committee requests the Government to provide detailed information on the application in practice of the instruments that regulate the conservation and administration of natural resources within the territories traditionally occupied by indigenous and tribal peoples. The Committee also requests the Government to provide information on the action taken to recover the areas of the Indio-Maíz Reserve which were traditionally used by indigenous peoples and which were affected by the fire in April 2018.

Article 15(2). Prior consultation. Natural resources. The Committee previously requested the Government to indicate the procedures that exist to ensure that indigenous peoples can participate in the benefits of the activities for the exploitation of the natural resources on their lands. In this regard, the Committee notes the detailed information provided by the Government on the procedure to grant concessions and contracts for the rational exploitation of natural resources on the lands of indigenous peoples in the autonomous regions. The Government refers to several legal provisions, and in particular to the Act governing communal ownership for the indigenous peoples and ethnic communities of the autonomous regions of the Atlantic Coast of Nicaragua and of the Bocay, Coco, Indio and Maíz rivers (Act No. 445), which provides that indigenous communities and communities of African descent, on whose lands natural resources are located that are subject to rational exploitation concessions and contracts, shall be consulted prior to the corresponding concession or signature of the contract. During the consultation procedure, the respective community shall respond positively or negatively to the request by the autonomous regional council. In cases where the community opposes the implementation of the project, the autonomous regional council shall initiate negotiations with the community, which shall be assisted by technicians selected by the community. The Government indicates that, once the consultation process has ended, the community, the autonomous regional council and the body or enterprise concerned shall sign an agreement specifying the technical terms and the participation in the economic benefits. The Committee notes the Bio-Protocol on the consultation and free, informed and prior consent of the Mayangna Sauni Arungka-Matumbak people, published by the International Union for Conservation of Nature (IUCN), which was drafted by the territorial government of this people with the support of the IUCN and which serves as a tool for the internal governance of the Matumbak territory. The Committee requests the Government to provide examples of the consultations conducted with the indigenous peoples and communities and the peoples and communities of African descent of the autonomous regions of the Caribbean Coast and the Bocay, Coco, Indio and Maíz rivers, and of the Pacific, North and Central regions of Nicaragua prior to the implementation of programmes for the exploration or exploitation of natural resources on their lands. It also requests the Government to provide information on the negotiation processes and agreements concluded during prior consultations with indigenous and tribal communities under Act No. 445. The Committee also requests the Government to indicate the manner in which the Bio-Protocol on the consultation and free, informed and prior consent of the Mayangna Sauni Arungka-Matumbak people has been used.

Article 20. Recruitment and conditions of employment. With reference to its previous comments, the Committee notes the information provided by the Government on the building of the technical and vocational capacities of the inspectorate and the strengthening of inspection plans and programmes for the provision of assistance and guidance regarding the labour rights of the inhabitants of the autonomous regions of the North Caribbean Coast and the South Caribbean Coast, carried out by representatives from the Ministry of Labour. The Committee notes that the Labour Code has been translated into Miskito to ensure its dissemination and ownership by indigenous communities. The Committee requests the Government to continue providing information on the action taken, in cooperation with indigenous peoples, to promote access to employment and ensure the effective protection of conditions of employment for persons belonging to indigenous peoples and peoples of African descent. It also requests the Government to provide information on the adoption of measures aimed specifically at facilitating the access of indigenous women to decent work and ensuring the effective protection of their rights.

Articles 24 and 25. Health and social security. The Committee notes the progress made in the management of the provision of health services, with the participation of the health secretaries of the autonomous regional councils. The Committee welcomes the adoption of the regulations of Act No. 759 (Ancestral Traditional Medicine Act) in April 2014, which provide that indigenous peoples and peoples of African descent may, through their authorities, participate actively in the implementation of plans, programmes and projects regarding traditional medicine. The regulations recognize that such peoples have the right to report violations of their rights regarding natural resources, specifically those preventing them from using trees and medicinal plants for their traditional medicinal practices. The Government indicates that, since 2014, coordination between the different health systems, natural medicine and complementary therapies, and traditional medicine systems has increased significantly, as a result of the creation of the Institute of Natural and Traditional Medicine and Complementary Therapies of the Ministry of Health. Lastly, the Government also indicates the progress made in extending health coverage through the establishment of subsidiary health offices. The Committee requests the Government to continue providing information on the impact of programmes and policies to promote the ancestral traditional medicine of indigenous and tribal peoples. It also requests the Government to provide updated statistical information on the access of persons belonging to indigenous and tribal peoples to health services in the autonomous regions, and in the Pacific, North and Central regions.

Articles 26–31. Education. The Committee notes the Government’s indication that, since the implementation of the Bilingual Intercultural Education Programme (PEIB) in the 1980s, teaching support materials have been produced in indigenous languages. Five hundred indigenous teachers in regular schools on the Caribbean Coast have received training on the bilingual intercultural curriculum. The Government refers in particular to the implementation of bilingual intercultural education programmes for the Mayangna, Kriol and Miskito, and the training of indigenous teachers on the use and management of curricula, educational planning and assessment systems. Furthermore, through the regional education secretariats of the regional autonomous education subsystem, the organizational structures of indigenous peoples and peoples of African descent have been strengthened (community, municipal and regional education commissions), in which indigenous community representatives can put forward specific proposals on education issues. The Committee encourages the Government to continue taking measures to increase the participation of indigenous peoples in and improve their training on the formulation and implementation of education programmes within the framework of the regional autonomous education subsystem, and to continue providing information on the educational programmes for indigenous peoples in the Pacific, Central and North regions. It also requests the Government to provide examples of the manner in which the educational programmes implemented address the knowledge, techniques and value systems of indigenous populations, and information on the school attendance of members of indigenous communities.

Article 31. Eliminating prejudices. The Committee notes the Government’s indication on the progress made regarding the legislation on equality and non-discrimination. The Government indicates that, according to leaders from the Caribbean Coast, the challenges lie in ensuring that public policies reach the community and result in a better quality of life, and recognizing the persistence of racism and discrimination and the need to take joint action to address them. The Committee requests the Government to provide information on the measures adopted, particularly with regard to education, to eliminate discrimination and prejudice against members of indigenous and tribal peoples.