Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Bolivia (Plurinational State of) (Ratification: 1991)

The Committee notes the observations of the International Organisation of Employers (IOE), received on 2 September 2019, which include general comments on the application of the Convention. The Committee also notes the observations of the General Confederation of Workers of Peru (CGTP), received on 23 March 2017, which include the report of the Coordinator of Indigenous Organizations of the Amazon River Basin (COICA) concerning the application of the Convention in various countries.

Articles 2, 3 and 33 of the Convention. Human rights and the institutional framework. Coordinated and systematic action. The Committee notes the Government’s indication in its report that the application of standards relating to the rights of indigenous peoples is a cross-cutting matter in the competent State institutions, both at the central level and in autonomous, departmental, municipal governments and indigenous autonomies. It also notes that, under the terms of the Framework Act on Autonomies and Decentralization of 2010, the statutes were approved of the Guaraní Charagua Iyambae Autonomous Authority, the Original Indigenous Autonomous Authority of Raqaypamba and the Autonomous Government of the Original Uru Chipaya Nation. In accordance with the Act, Original Indigenous Peasant Autonomies (AIOCs) are empowered to elect their authorities directly, administer their economic resources, exercise indigenous jurisdiction within their territorial jurisdiction, and are competent to determine and manage development plans and programmes in accordance with their identity and vision (sections 8 and 9). The Government also refers to the adoption of the Patriotic Agenda 2025, which constitutes the General Economic and Social Development Plan.

The Committee takes due note of the press release of 12 November 2019 of the Inter-American Commission on Human Rights (IACHR), in which the IACHR, in the context of the protests and confrontations of November 2019, refers to the deterioration of public order in the Plurinational State of Bolivia and expresses concern at expressions of hate and other forms of violence against indigenous peoples and their symbols.

The Committee welcomes the cross-cutting approach that has been adopted by the Government to ensure respect for the rights recognized in the Convention. The Committee notes with concern the issues raised by the IACHR and firmly hopes that the Government will take measures to prevent and penalize any form of violence against indigenous peoples. The Committee requests the Government to indicate the manner in which the peoples covered by the Convention participate in the planning, execution and evaluation of measures intended to protect their rights, including in the context of the measures adopted under the General Economic and Social Development Plan, and also to indicate the manner in which it is ensured that the institutions responsible for the implementation of these measures have the necessary resources for the discharge of their functions. The Committee further requests the Government to provide information on the functioning of coordination between Original Indigenous Peasant Autonomies and other levels of government in relation to the management and financing of development programmes for indigenous peoples.

Article 6. Consultation. In its previous observation, the Committee noted the process of concertation concerning a legislative proposal on prior consultation, which included the participation of indigenous organizations, intercultural and Afro-Bolivian communities and representatives of the executive, legislative and electoral authorities. The Committee also noted that the Bill was submitted to the Plurinational Legislative Assembly for approval, and requested the Government to provide information on developments in this regard. The Committee notes that the Government has not provided information on this subject and once again requests the Government to provide information on any progress in the adoption of legislation on prior consultation. The Committee recalls the need for the consultation of indigenous peoples in the context of this process and for them to be able to participate in an appropriate form through their representative institutions, so that they can express their views and have an influence on the outcome of the process.

Consultation with the peoples of the Isidoro Sécure Indigenous Territory and National Park (TIPNIS). In its previous observation, the Committee noted that the Government was holding consultations in relation to the project for the construction of the Villa Tunari-San Ignacio de Moxos highway, which would affect the TIPNIS. It noted that, of the 69 indigenous communities affected, 58 decided to engage in consultation and 11 decided not to do so, and it requested the Government to provide information enabling it to examine the manner in which the difficulties arising in relation to the project were resolved. The Committee notes the Government’s indication that, despite the fact the majority of indigenous communities agreed to the construction of the highway, consensus was not reached with all the indigenous communities inhabiting the TIPNIS, for which reason construction was suspended. The Committee notes the adoption on 13 August 2017 of Act No. 969 on the protection and sustainable and comprehensive development of the Isiboro Sécure Indigenous Territory and National Park (TIPNIS), as a result of the consultation of the Mojeño-Trinitario, Chimán and Yuracaré peoples. The Act provides that communication and integration action to improve, establish and maintain the rights of indigenous peoples, such as free movement, through the opening of local paths, roads, river, air and other navigation systems, shall be planned in a participatory manner with the indigenous peoples (section 9). It also provides that the exploitation of renewable natural resources and the development of productive activities may be undertaken with the participation of private entities on condition that agreements or associations exist with the indigenous peoples of the TIPNIS, with the authorization and monitoring of the competent State bodies, and with the guarantee of a margin of earnings for those peoples (section 10). The Committee notes that, in order to ensure compliance with Act No. 969, it is planned to establish a Joint Commission under the responsibility of the Office of the President, composed of the Ministries involved and the Mojeño-Trinitario, Chimán and Yuracaré peoples residing in the territory of the TIPNIS. The Committee requests the Government to indicate whether road and infrastructure development projects have been undertaken in the TIPNIS, with an indication of the manner in which the indigenous peoples residing in the area were consulted in this regard. The Committee also requests the Government to provide information on the agreements or associations established between the private sector and indigenous peoples for the exploitation of renewable natural resources and the development of productive activities, with an indication of the manner in which the peoples have participated in the benefits of these activities. Please also provide information on the activities of the Joint Commission established to ensure effective compliance with Act No. 969.

Article 15. Consultations. Natural resources. The Committee notes the adoption on 19 May 2014 of the Act on minerals and metallurgy, section 207 of which guarantees the right to prior, free and informed consultation by the State with original indigenous rural nations and peoples, intercultural communities and the Afro-Bolivian people, in relation to any application for the conclusion of an administrative mining contract likely to directly affect their collective rights. However, the Committee notes that this legal provision exempts from the requirement of consultation mining prospection and exploration operations, as well as administrative mining contracts for the rehabilitation of sites and lease and shared irrigation contracts, as pre-established rights. In accordance with section 209 of the Act, the parties to the consultation have to meet the conditions of: pre colonial existence and ancestral possession of the territory; maintenance of their cultural patterns; identification as members of a nation or people; and access and collective management of their lands and territories. The Act also provides that prior consultation shall be held in a maximum of three meetings and shall not have a duration of over four months from the final notification of the consultation process to the parties concerned (sections 211 and 212).

The Committee notes that Presidential Decree No. 2298, of 18 March 2015, includes provisions for the holding of consultations and the participation of indigenous peoples in relation to oil extraction activities. It provides that the competent authority, in accordance with the territorial identification, organizational independence and traditions and customs of indigenous peoples, shall convene in writing the representation bodies liable to be affected with a view to holding an information and coordination meeting for the development of the consultation process. In the event that, exceptionally, it is not possible to hold or conclude consultation processes for reasons that cannot be attributed to the competent authority, the latter shall issue a decision determining the situation with regard to the implementation of the project and reporting all of the efforts made to follow the process of consultation and to safeguard the rights of indigenous peoples.

The Committee recalls that Article 15(2) of the Convention establishes the requirement for consultation with indigenous peoples before undertaking or permitting any programmes for the exploration or exploitation of natural resources pertaining to their lands, and it therefore requests the Government: (1) to amend the Act on mining and metallurgy to bring it into conformity with the Convention so as to ensure that indigenous peoples are consulted before any mining exploration or exploitation operations are undertaken on their lands; (2) to ensure that any mining, oil or gas exploration or exploitation programme or activity undertaken on the lands of the peoples covered by the Convention is the subject of consultation with the peoples concerned; and (3) to indicate the manner in which in practice the requirement of access and the collective management of lands is understood under the terms of the Act as being a matter for consultation.

The Committee recalls that, in its 2011 general observation, it emphasized that the application of the right to consultation must be adapted to the situation of the peoples concerned, ensuring that the communities affected participate as early as possible in the process, including in the preparation of environmental impact studies. In this regard, the Committee requests the Government to indicate the manner in which the consultation processes undertaken in relation to mining and oil extraction activities have taken into account the decision-making institutions and procedures of the peoples concerned. It also requests the Government to provide information on the consultation processes undertaken in relation to mining and oil projects in which agreement has been reached with the peoples consulted, with an indication of the manner in which the concerns of indigenous peoples who have not been able to participate in the consultation processes have been taken into consideration.

The Committee is raising other matters in a request addressed directly to the Government.