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

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

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.

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

The Committee notes the Act for the Partial Reform of the Political Constitution of Nicaragua, adopted in January 2014, which replaces the term “communities of the Atlantic Coast” with “communities of the Caribbean Coast” contained in article 180 of the Constitution, and which recognizes that such communities have the “inalienable right to live and develop under the political, administrative, social and cultural organizational structure that is in keeping with their historical and cultural traditions”. Consequently, in March 2016, Act No. 28 containing the Statute of Autonomy of the Atlantic Coast Regions of Nicaragua was amended, by replacing the terms “North Atlantic Autonomous Region” and “South Atlantic Autonomous Region” with “North Caribbean Coast Autonomous Region” and “South Caribbean Coast Autonomous Region” respectively. The Committee recalls that the Government has recognized the existence of indigenous peoples and peoples of African descent in these autonomous regions, and in the Pacific, Central and North regions of Nicaragua.

Article 3 of the Convention. Human rights. Violence against indigenous communities on the North Caribbean Coast. The Committee notes that the Inter-American Court of Human Rights (IACHR), through its ruling of 1 September 2016, issued provisional measures in favour of members of the Miskito people from the North Caribbean Coast region living in the communities of Klisnak, Wisconsin, Wiwinak, San Jéronimo and Francia Sirpi in order to bring an end to the climate of violence affecting this region, which stems from conflicts over land possession. These measures include the establishment of an authority or body to identify the sources of conflict and propose ways of building peace with the participation of the communities affected, and of guarantees to protect persons who have left their communities due to violence and who wish to return. In the rulings adopted on 23 November 2016 and 30 June 2017, the Court extended these provisional measures to cover members of the Miskito people living in the Esperanza Río Coco and Esperanza Río Wawa regions, respectively. The Court based its rulings on the conclusions of the Inter-American Commission of Human Rights, which referred to the “existence of conflicts between members of such communities and third parties occupying the land, which has resulted in multiple acts of violence, including murders, kidnappings, injury, sexual violence, destruction of property and displacement of the members of some communities” during the legal process of verification (saneamiento) and remediation, and reclaiming ancestral land (court ruling of 1 September 2016, paragraph 7). The Committee notes that the Government informed the Court that it had implemented an action plan used by the North Military Unit of the Nicaraguan Army to address the situation faced by community members and occupiers in communities affected by violence, and that it has established a Dialogue and Understanding Commission to take action to promote dialogue and understanding between territorial and community leaders and other stakeholders for the purpose of preventing confrontation (court ruling of 23 November 2016, paragraphs 23 and 31). The Committee expresses its concern regarding the conflicts and acts of violence that have occurred in the North Caribbean Coast Autonomous Region as a result of land claims and verification and remediation (saneamiento) processes. The Committee requests the Government to provide information on: the measures adopted to prevent all acts of violence and ensuring the cultural life and integrity of the communities of the Miskito people in this region, and the exercise of their collective rights; and the measures adopted to investigate acts of violence, determine the responsibilities of and penalize the perpetrators. Lastly, the Committee also requests the Government to indicate the manner in which members of the Miskito communities affected by the climate of violence participate in the development, implementation and evaluation of the measures adopted, including security plans.

Article 14. Demarcation and land title processes. In its previous comments, the Committee requested the Government to provide information on progress made in the demarcation and title processes with respect to the lands of indigenous peoples. The Committee noted the constitutional and legal guarantees regarding the communal ownership of the lands of indigenous peoples. The Committee recalls that the demarcation and title processes of the indigenous peoples of the autonomous regions of the Caribbean Coast are regulated by 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 of 2002), which established the National Demarcation and Title Commission (CONADETI) to, inter alia, determine and resolve applications for demarcation and title. While observing that there is no specific legislation that regulates the communal property of the indigenous peoples of the Pacific, Central and North regions of the country, the Committee requested the Government to describe the steps taken to identify the lands traditionally occupied by indigenous peoples in these areas, and the forms of landholding.

The Government indicates in its report that it is prepared to continue moving forward with the land demarcation and title process. The Government indicates that, during the period 2007–16, 23 territories were demarcated, titled and registered in favour of indigenous communities, with 16 titles granted for territories in the North Caribbean Coast Autonomous Region, four titles granted for territories in the South Caribbean Coast region and three titles granted in the “special status zone”. The titles have benefitted 304 indigenous communities and cover an area of land equivalent to 28.95 per cent of the national territory. The Government indicates that the legal process of verification and remediation (saneamiento), which is the fifth and last stage of the process of legalizing indigenous territories in the autonomous regions of the Caribbean, is a highly complex national issue. The Committee notes the adoption of Presidential Decree No. 15-2013 establishing the Interinstitutional Commission for the Protection of Mother Earth in the Territories of Indigenous Peoples and Peoples of African Descent in the Caribbean and Alto Wangki-Bocay Regions, whose objectives include mediating and finding alternative solutions to, where possible, conflicts involving others occupying areas belonging to indigenous communities. With regard to the Pacific, Central and North regions of the country, the Government indicates that the authorities of indigenous peoples consider that their ownership titles have been registered and are fully and legally effective. However, the Government indicates that difficulties have arisen regarding the recognition of collective ownership titles and the illegal occupation of land by landowners.

The Committee notes that the Government has implemented, with the support of the World Bank, the Land Administration Project (PRODEP), which aims to facilitate the demarcation, titling and registration of the property rights of indigenous peoples in the departments of Nueva Segovia, Jinotega and Rivas. According to Report No. PIDC536 published by the World Bank, the number of beneficiaries of the Second Land Administration Project (PRODEP II) at 31 December 2017 had increased to 633,627 persons and 92,995 households. The Committee notes the Government’s indication regarding the lack of consensus among the communities with respect to the Project and the official cartographic maps drawn up by the Nicaraguan Institute for Territorial Studies.

The Committee welcomes the efforts made to ensure the effective protection of the right to ownership and possession of land of indigenous peoples, and requests the Government to continue providing information on the results of the processes of demarcating and titling the traditional territories of the peoples covered by the Convention, within the scope of the regime established for the autonomous regions of the Caribbean Coast (Act No. 445) and also for the communities in the Pacific, Central and North regions. The Committee also requests the Government to provide information on the participation of indigenous and tribal peoples in the implementation of PRODEP II, and on the procedures established to resolve the disagreements between communities, and between communities and third parties, with regard to demarcation processes.

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

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes with concern that the Government’s report has not been received. It expects that the next report will contain full information on the matters raised in its previous comments initially made in 2013.

Repetition

The Committee notes that the Government indicates that there is recognition of the indigenous and Afro-Nicaraguan peoples of the Atlantic Coast and of the indigenous peoples of the Pacific, Central and North regions of Nicaragua, and also of their individual and collective fundamental rights. The Miskito, Mayangna and Rama indigenous peoples and the Creole and Garífuna ethnic and Afro-Nicaraguan communities located on the Caribbean Coast account for 10 per cent of the Nicaraguan population. The indigenous peoples descended from the Cacaopera, Chorotega, Xiu and Nahoa in the Pacific (departments of Riva, Masaya, León and Chinandega), Central (departments of Matagalpa and Jinotega) and North regions (departments of Nueva Segovia and Madriz) represent 6.07 per cent of the Nicaraguan population. In the 2005 population and housing census, data were collected on the population which had identified itself as belonging to indigenous or ethnic communities; out of a total national population of 5,142,098 inhabitants, a total of 443,847 people were covered by self-identification, the majority of which belonged to the Miskito people (slightly over 120,000 persons) and the Mestizos of the Caribbean Coast (slightly over 112,000 persons). The Committee notes the existence of the two autonomous regions of the Atlantic Coast, namely the South Atlantic Autonomous Region (RAAS) and the North Atlantic Autonomous Region (RAAN). The Committee considers that the Convention is fundamentally an instrument that favours dialogue and participation, and recalls that Part VIII of the report form states as follows: “Although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application.” The Committee invites the Government, when preparing its next report, to consult the social partners and indigenous organizations on the measures taken to give effect to the Convention. The Committee also invites the Government to provide a report containing detailed replies to the matters covered by the report form and to include full information on the points set out below.

Communication from the International Organisation of Employers (IOE). The Committee recalls that in September 2012 the Office forwarded to the Government the observations from the IOE on the application in law and practice of the requirement of consultation laid down by Articles 6, 7, 15 and 16 of the Convention. The IOE raised the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus among indigenous and tribal peoples regarding their internal procedures, and the importance for the Committee to be aware of the consequences of these issues in terms of legal certainty, financial costs and certainty of both public and private investment. The IOE referred to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also stated that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to provide its comments in this respect.

Articles 2 and 33 of the Convention. Coordinated and systematic action. Administration. The Committee notes the existence of a Commission for Ethnic Affairs, Autonomous Regimes and Indigenous Communities in the National Assembly and of the Secretariat for Indigenous Affairs within the Executive Authority. Two other entities are responsible for coordination among the autonomous authorities, the authorities of the indigenous peoples and the Executive Authority, the Secretariat for the Development of the Atlantic Coast and the Council for the Development of the Atlantic Coast, both departments being under the authority of the Presidency of the Republic. The administrative bodies of the autonomous regions include the Regional Council, the higher authority of the corresponding autonomous region, within which all ethnic communities of the respective autonomous region must be represented. The Government sent with its report the “Development Plan for the Caribbean Coast: En route to development” (2009 Development Plan), the “Evaluation Document for the Development Strategy for the Caribbean Coast and Alto Wangki” (2011 Evaluation Document), and the “Development Strategy for the Caribbean Coast and Alto Wangki Bocay” (2012–16 Development Strategy), which resulted from the cooperation between the Caribbean Coast Development Council, the autonomous regions and the territorial government of Alto Wangki Bocay. The Committee invites the Government to include in its next report an evaluation of the results of the aforementioned plans and strategies. It also invites the Government to indicate how the participation of the peoples concerned is ensured in the case of the programmes implemented outside the sphere of the autonomous regions (Article 2). Lastly, the Committee requests the Government to indicate what measures have been taken to ensure that the agencies which administer the programmes covered by the Convention have the means necessary for the proper fulfilment of their functions (Article 33(1)).

Article 6. Consultation. Institutions and initiatives. The Committee notes that all municipalities of the country have the obligation to consult the traditional authorities of the indigenous communities, in the context of municipal development programmes. In the autonomous regions there is also the obligation of civic consultation. The 2011 Evaluation Document indicates that eight indigenous and Afro-Nicaraguan territorial governments receive resources from the public investment programme to cover their own administration. The Committee invites the Government to supply information on the operation of the consultation procedures. The Committee also invites the Government to indicate the manner in which the participation of the descendants of the Cacaopera, Chorotega, Xiu and Nahoa peoples in decision-making is facilitated.

Article 7(1) and (2). Development process. Participation. Development plans. The Committee notes the existing bodies for civic participation with regard to the formulation of national and sectoral public policies. In the autonomous regions, the legislation relating to civic participation provides for the setting up of a regional council for economic and social planning with the participation of a delegate from the Council of Elders of each ethnic group in the autonomous region. The powers of the autonomous regions include effective participation in the formulation and implementation of national development plans and programmes in their regions. The Committee notes that the priorities identified in the 2009 Development Plan, the 2011 Evaluation Document and the 2012–16 Development Strategy include land tenure, food security, cultural revitalization, education, health, access to water, environmental balance and economic dynamism. The Committee invites the Government to include information in its next report on the measures taken to ensure the participation of all the peoples concerned in the formulation, implementation and evaluation of the measures and plans that affect them. The Committee also invites the Government to supply information on the activities of the Regional Council for Economic and Social Planning in relation to the matters covered by the Convention.

Article 7(3). Studies on the impact of development activities. Cooperation of indigenous peoples. The Committee notes the provisions of the environmental legislation concerning the declaration of protected areas and the implementation of scientific studies in protected areas located in indigenous community lands. With regard to their composition, sectoral national councils must include a representative of the autonomous regional governments and a delegate of each of the organizations of indigenous peoples, communities of the Atlantic Coast, and organizations representing women, young people, communities, children and persons with disabilities. The Committee invites the Government to include examples in its next report of studies assessing the social, spiritual and cultural impact of development activities on the peoples concerned. The Government is also invited to indicate how the cooperation of the peoples affected by the development activities is secured.

Article 8. Customary laws. The Committee notes that, under section 18 of the Charter establishing the autonomy of the regions of the Atlantic Coast (Autonomy Charter), the administration of justice in the autonomous regions shall be governed by special regulations that reflect the particular cultural features of the communities of the Atlantic Coast. The Committee invites the Government to include information in its next report on any procedures established for resolving conflicts that may arise (Article 8(2)) and to include examples of decisions where account has been taken of the customs or customary laws of the peoples concerned.

Article 9. Criminal penalties. The Committee notes that, under section 20(2) of the Penal Code, crimes and offences committed by members of the indigenous peoples and ethnic communities of the Atlantic Coast within and among their communities for which the penalty does not exceed five years’ imprisonment shall be tried in accordance with customary laws, subject to the provisions of the Constitution of Nicaragua. The Committee invites the Government to provide examples of the application in practice of this provision of the Convention throughout the country. The Committee also invites the Government to give examples of customary laws applied in relation to the matters covered by the Convention.

Article 14. Land. Forms of landholding. The Committee notes that the Constitution of Nicaragua recognizes the right of indigenous peoples to maintain communal forms of land ownership and the enjoyment and use thereof. The Government indicates in its report that the current legislation does not include regulating the system of communal ownership of the indigenous peoples of the Pacific, Central and North regions of the country. The Government adds that there are miscellaneous provisions in various agrarian property laws concerning communal ownership rights for indigenous peoples. The Committee notes that the Constitution also stipulates that the State shall guarantee to the communities of the Atlantic Coast the effectiveness of their forms of communal ownership. Referring to the progress made on the implementation of the “Plan for demarcation and titling with respect to the communal ownership system”, the Government indicates in its report that during the 2007–12 period 17 land titles were granted (three in the “special status zone”, 11 in the North Atlantic Autonomous Region and three in the South Atlantic Autonomous Region) covering 243 indigenous and Afro-Nicaraguan communities in an area of 29,078.75 km2. The Committee invites the Government to describe in its next report the forms of landholding practised by the indigenous peoples of the Pacific, Central and North regions of Nicaragua, and the steps that have been taken to identify the lands that they traditionally occupy and to guarantee the effective protection of their rights to these lands. The Committee also invites the Government to continue to provide information on progress made in the demarcation and titling process with respect to lands located in the autonomous regions of the Atlantic Coast.

Procedures for resolving land claims. The Committee notes the provisions relating to the resolution of land disputes contained in 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 and its implementing regulations. The Committee invites the Government to provide information in its next report on procedures for resolving land claims made by indigenous peoples and to include examples of the operation thereof throughout the country.

Article 15. Natural resources. The Committee notes that, under article 102 of the Constitution of Nicaragua, natural resources are part of the national heritage. Section 4(4) of the General Environment Act provides that the State shall recognize and support indigenous peoples and communities, from the autonomous, Pacific and Central regions alike, in their activities for conservation of the environment and sustainable use of natural resources. Section 9 of the Autonomy Charter provides that in the rational exploitation of mining, forestry, fishing and other natural resources of the autonomous regions the rights of ownership relating to communal lands shall be recognized and shall benefit their inhabitants proportionately through agreements between the regional and central governments. The Committee invites the Government to indicate what procedures exist to ensure that indigenous peoples can participate in the benefits of the activities referred to in Article 15 of the Convention. The Committee also requests the Government to provide information on the application in practice of the General Environment Act on the matters covered by the Convention.

Article 16. Relocation. The Committee invites the Government to indicate in its next report whether cases of relocation as provided for under Article 16(2) of the Convention have occurred and to indicate the procedures followed in any such cases.

Article 17. Transmission of land rights. Protection measures. The Committee notes that, under section 11(6) of the Autonomy Charter, the right to communal, collective and individual forms of ownership and the transmission thereof is recognized. The Committee invites the Government to indicate in its next report whether there are any restrictions on the right of the peoples concerned to dispose of their lands or otherwise transmit their land rights outside their own community. The Government is also invited to indicate what procedures have been established by the peoples concerned in the Pacific, Central and North regions for the transmission of land rights among their own members.

Article 19. National agrarian programmes. The Committee notes that the Urban and Rural Ownership Reform Act recognizes titles granted under agrarian reform to rural properties on the lands of indigenous communities. Under section 103 of the abovementioned Act, natural or legal persons that obtain titles under agrarian reform to rural properties on the lands of indigenous communities must pay a rental payment to the said communities. Under section 3 of the implementing regulations for the Act, the rental payment shall be fixed once the lands of the indigenous communities have been demarcated. The Committee invites the Government to send information in its next report on the agrarian programmes in progress and the manner in which lands are allocated and the necessary means granted for the development of lands that indigenous and Afro Nicaraguan peoples already possess. Please also include practical information on the rental payment paid to indigenous peoples as provided for in the legislation relating to the reform of urban and rural ownership.

Article 20. Recruitment and conditions of employment. Adequate labour inspection services. The Committee notes that the Act concerning the fair and decent treatment of indigenous and Afro-Nicaraguan peoples recognizes that it is the duty of the State to ensure the effectiveness of labour rights and the protection it affords to the indigenous and Afro-Nicaraguan peoples of the Caribbean Coast and Alto Wangki and the indigenous peoples of the Central, North and Pacific regions of Nicaragua, as regards access to public and private employment with full entitlement to decent work and pay and without any discriminatory treatment regarding conditions of work. The Committee invites the Government to indicate the impact of the abovementioned measures in its next report. The Committee also invites the Government to specify what measures have been taken to ensure adequate labour inspection in areas where workers belonging to the indigenous and Afro Nicaraguan peoples undertake employment.

Articles 21 and 22. Vocational training. Voluntary participation. The Committee notes that the responsibilities of the National Technological Institute (INATEC) include the implementation of vocational training programmes aimed at persons over 14 years of age and special population groups. Furthermore, the General Education Act establishes that the Ministry of Education, Culture and Sport (MECD) and INATEC shall coordinate all matters relating to the educational sub system of the autonomous regions with the respective regional governments. The 2011 Evaluation Document reports that an increase has been observed in the provision of technical training courses in all municipalities of the Caribbean Coast and improvements to the infrastructure have been made. The Committee invites the Government to provide information on the special training programmes that have been made available to the indigenous peoples concerned, the impact thereof and how the peoples concerned were consulted (Article 22(2) and (3)). The Government is also invited to indicate whether measures have been taken to enable the peoples concerned to assume responsibility for training programmes (Article 22(3)).

Article 23. Traditional activities. The Committee notes that the 2009 Development Plan and the 2012–16 Development Strategy recognize that fishing is a fundamental activity, directly linked to the life, culture and customs of the Caribbean. The Committee invites the Government to supply more information on the measures taken with the participation of the peoples concerned to apply Article 23 of the Convention.

Article 24. Social security. The Committee notes that the Ancestral Traditional Medicine Act provides that the State, in consultation with the indigenous and Afro-Nicaraguan peoples and communities, shall create special social security models within the field of ancestral traditional medicine. The Committee invites the Government to indicate whether existing social security schemes cover the peoples concerned, with respect both to wage earners among them and others, and, if so, to indicate what measures have been taken to extend such coverage. The Committee also invites the Government to supply information on the application in practice of the Ancestral Traditional Medicine Act.

Article 25. Health services. The Committee notes that the progress described by the Government in its report includes the construction of two new primary-care hospitals in Mulukuku and Alamikamba and a field hospital in Waspam and the impetus given to the inter-cultural health model in Alto Wangki Bocay, where the health units of the Amak, San Andrés and Raiti communities have been repaired and renovated. The 2012–16 Development Strategy refers to the process of transfer, transmission and delegation of competencies and duties under the Regional Health Strategy Framework Agreement. The Committee notes that the Ancestral Traditional Medicine Act provides that health services for indigenous and Afro-Nicaraguan peoples who practise ancestral traditional medicine must be implemented in accordance with the cultural values of each people. The General Health Act provides that the autonomous regions may define a health-care model in accordance with their traditions, culture, habits and customs within the framework of Ministry of Health policies, plans, programmes and projects. The autonomous regional councils may establish the health administrations that they consider appropriate for the administration of health services. The Committee invites the Government to include up-to-date information in its next report on the implementation of inter-cultural health models and the interaction between health centres or health posts and ancestral traditional medicine. The Committee also invites the Government to include information on existing health services in the regions inhabited by the indigenous and Afro-Nicaraguan peoples. Lastly, the Committee invites the Government to provide information on progress made in the implementation of the Regional Health Strategy Framework Agreement.

Articles 26 and 27. Education programmes and services. The Committee notes that curriculum development has been undertaken for the three levels of early education in the Miskito, Tuahka Panmáhka, Ulwa and Creole English languages, and that teachers have been trained to cater for more than 3,000 children. The Government also refers in its report to efforts to systematize the professional status and professional development for teachers without formal training at both primary and secondary level; to equip the education system with adequate financial and technical resources; and to increase the budget allocated to education. The autonomous regions have programmes and texts produced in the indigenous and Afro Nicaraguan languages but there is a lack of printing and distribution. The Committee invites the Government to include up-to-date information in its next report on the number and types of schools and the number of teachers throughout the country, and to indicate how it is ensured that education programmes and services also meet the particular needs of the indigenous peoples in the Pacific, Central and North regions. The Committee also invites the Government to indicate what measures have been taken for the training of members of the peoples concerned and for their involvement in the formulation and implementation of education programmes. The Government is also invited to include information on the measures taken to recognize the right of indigenous peoples to establish their own education institutions, services and facilities.

Articles 28 and 29. Bilingual inter-cultural education. Educational goals. The Committee notes that the Children and Young Persons’ Code provides that children and young persons belonging to indigenous and ethnic communities have the right to inter-cultural education in their mother tongue in their region and that children and young persons belonging to indigenous communities, ethnic or linguistic groups or of indigenous origin are also entitled to receive education in their own language. The Official Use of Languages Act provides that the State shall establish programmes to preserve, save and promote the Miskito, Sumo, Rama, Creole and Garífuna cultures, and also any other indigenous culture that still exists in the country, examining the future feasibility of education in their mother tongue. The Government indicates in its report that it is intended to draw up a plan for the preservation of original languages (Rama, Tuahka, Garífuna and Ulwa) and devise educational materials. The Committee invites the Government to include up-to-date information in its next report on the impact of the measures taken in the context of the educational sub-system of the autonomous regions. The Committee also invites the Government to include up-to-date information on the impact of the measures taken to give effect to Articles 28 and 29 of the Convention throughout the country.

Article 30. Awareness raising. The Government indicates in its report that in early 2010 the Ministry of Labour published the Labour Code in Miskito, distributing 2,000 copies in the North Atlantic and South Atlantic autonomous regions of Nicaragua, particularly in Bilwi, Puerto Cabezas and Bluefields. The Committee invites the Government to supply copies of documentary material used to inform the peoples concerned of their rights and obligations.

Article 31. Eliminating prejudices. The Committee invites the Government to include detailed information in its next report on the educational measures taken or planned for eliminating any prejudices that may be held against indigenous and Afro-Nicaraguan peoples.

Article 32. Cross-border cooperation. The Committee notes that the powers of the autonomous regions include that of establishing and promoting traditional exchanges with the nations and peoples of the Caribbean. Moreover, in the context of the implementation of the tourism development programme, the 2012–16 Development Strategy envisages the promotion of strategic alliances involving routes, destinations, tour operators, guides and national tourism tracks, with other countries of the Caribbean, Central and South America and the rest of the world where indigenous peoples, ethnic communities and other communities of African descent are to be found. The Committee invites the Government to indicate what other measures have been taken to give effect to Article 32 and in particular whether any international agreement to this effect has been concluded.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes with regret that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

The Committee notes that the Government indicates that there is recognition of the indigenous and Afro-Nicaraguan peoples of the Atlantic Coast and of the indigenous peoples of the Pacific, Central and North regions of Nicaragua, and also of their individual and collective fundamental rights. The Miskito, Mayangna and Rama indigenous peoples and the Creole and Garífuna ethnic and Afro-Nicaraguan communities located on the Caribbean Coast account for 10 per cent of the Nicaraguan population. The indigenous peoples descended from the Cacaopera, Chorotega, Xiu and Nahoa in the Pacific (departments of Riva, Masaya, León and Chinandega), Central (departments of Matagalpa and Jinotega) and North regions (departments of Nueva Segovia and Madriz) represent 6.07 per cent of the Nicaraguan population. In the 2005 population and housing census, data were collected on the population which had identified itself as belonging to indigenous or ethnic communities; out of a total national population of 5,142,098 inhabitants, a total of 443,847 people were covered by self-identification, the majority of which belonged to the Miskito people (slightly over 120,000 persons) and the Mestizos of the Caribbean Coast (slightly over 112,000 persons). The Committee notes the existence of the two autonomous regions of the Atlantic Coast, namely the South Atlantic Autonomous Region (RAAS) and the North Atlantic Autonomous Region (RAAN). The Committee considers that the Convention is fundamentally an instrument that favours dialogue and participation, and recalls that Part VIII of the report form states as follows: “Although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application.” The Committee invites the Government, when preparing its next report, to consult the social partners and indigenous organizations on the measures taken to give effect to the Convention. The Committee also invites the Government to provide a report containing detailed replies to the matters covered by the report form and to include full information on the points set out below.

Communication from the International Organisation of Employers (IOE). The Committee recalls that in September 2012 the Office forwarded to the Government the observations from the IOE on the application in law and practice of the requirement of consultation laid down by Articles 6, 7, 15 and 16 of the Convention. The IOE raised the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus among indigenous and tribal peoples regarding their internal procedures, and the importance for the Committee to be aware of the consequences of these issues in terms of legal certainty, financial costs and certainty of both public and private investment. The IOE referred to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also stated that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to provide its comments in this respect.

Articles 2 and 33 of the Convention. Coordinated and systematic action. Administration. The Committee notes the existence of a Commission for Ethnic Affairs, Autonomous Regimes and Indigenous Communities in the National Assembly and of the Secretariat for Indigenous Affairs within the Executive Authority. Two other entities are responsible for coordination among the autonomous authorities, the authorities of the indigenous peoples and the Executive Authority, the Secretariat for the Development of the Atlantic Coast and the Council for the Development of the Atlantic Coast, both departments being under the authority of the Presidency of the Republic. The administrative bodies of the autonomous regions include the Regional Council, the higher authority of the corresponding autonomous region, within which all ethnic communities of the respective autonomous region must be represented. The Government sent with its report the “Development Plan for the Caribbean Coast: En route to development” (2009 Development Plan), the “Evaluation Document for the Development Strategy for the Caribbean Coast and Alto Wangki” (2011 Evaluation Document), and the “Development Strategy for the Caribbean Coast and Alto Wangki Bocay” (2012–16 Development Strategy), which resulted from the cooperation between the Caribbean Coast Development Council, the autonomous regions and the territorial government of Alto Wangki Bocay. The Committee invites the Government to include in its next report an evaluation of the results of the aforementioned plans and strategies. It also invites the Government to indicate how the participation of the peoples concerned is ensured in the case of the programmes implemented outside the sphere of the autonomous regions (Article 2). Lastly, the Committee requests the Government to indicate what measures have been taken to ensure that the agencies which administer the programmes covered by the Convention have the means necessary for the proper fulfilment of their functions (Article 33(1)).

Article 6. Consultation. Institutions and initiatives. The Committee notes that all municipalities of the country have the obligation to consult the traditional authorities of the indigenous communities, in the context of municipal development programmes. In the autonomous regions there is also the obligation of civic consultation. The 2011 Evaluation Document indicates that eight indigenous and Afro-Nicaraguan territorial governments receive resources from the public investment programme to cover their own administration. The Committee invites the Government to supply information on the operation of the consultation procedures. The Committee also invites the Government to indicate the manner in which the participation of the descendants of the Cacaopera, Chorotega, Xiu and Nahoa peoples in decision-making is facilitated.

Article 7(1) and (2). Development process. Participation. Development plans. The Committee notes the existing bodies for civic participation with regard to the formulation of national and sectoral public policies. In the autonomous regions, the legislation relating to civic participation provides for the setting up of a regional council for economic and social planning with the participation of a delegate from the Council of Elders of each ethnic group in the autonomous region. The powers of the autonomous regions include effective participation in the formulation and implementation of national development plans and programmes in their regions. The Committee notes that the priorities identified in the 2009 Development Plan, the 2011 Evaluation Document and the 2012–16 Development Strategy include land tenure, food security, cultural revitalization, education, health, access to water, environmental balance and economic dynamism. The Committee invites the Government to include information in its next report on the measures taken to ensure the participation of all the peoples concerned in the formulation, implementation and evaluation of the measures and plans that affect them. The Committee also invites the Government to supply information on the activities of the Regional Council for Economic and Social Planning in relation to the matters covered by the Convention.

Article 7(3). Studies on the impact of development activities. Cooperation of indigenous peoples. The Committee notes the provisions of the environmental legislation concerning the declaration of protected areas and the implementation of scientific studies in protected areas located in indigenous community lands. With regard to their composition, sectoral national councils must include a representative of the autonomous regional governments and a delegate of each of the organizations of indigenous peoples, communities of the Atlantic Coast, and organizations representing women, young people, communities, children and persons with disabilities. The Committee invites the Government to include examples in its next report of studies assessing the social, spiritual and cultural impact of development activities on the peoples concerned. The Government is also invited to indicate how the cooperation of the peoples affected by the development activities is secured.

Article 8. Customary laws. The Committee notes that, under section 18 of the Charter establishing the autonomy of the regions of the Atlantic Coast (Autonomy Charter), the administration of justice in the autonomous regions shall be governed by special regulations that reflect the particular cultural features of the communities of the Atlantic Coast. The Committee invites the Government to include information in its next report on any procedures established for resolving conflicts that may arise (Article 8(2)) and to include examples of decisions where account has been taken of the customs or customary laws of the peoples concerned.

Article 9. Criminal penalties. The Committee notes that, under section 20(2) of the Penal Code, crimes and offences committed by members of the indigenous peoples and ethnic communities of the Atlantic Coast within and among their communities for which the penalty does not exceed five years’ imprisonment shall be tried in accordance with customary laws, subject to the provisions of the Constitution of Nicaragua. The Committee invites the Government to provide examples of the application in practice of this provision of the Convention throughout the country. The Committee also invites the Government to give examples of customary laws applied in relation to the matters covered by the Convention.

Article 14. Land. Forms of landholding. The Committee notes that the Constitution of Nicaragua recognizes the right of indigenous peoples to maintain communal forms of land ownership and the enjoyment and use thereof. The Government indicates in its report that the current legislation does not include regulating the system of communal ownership of the indigenous peoples of the Pacific, Central and North regions of the country. The Government adds that there are miscellaneous provisions in various agrarian property laws concerning communal ownership rights for indigenous peoples. The Committee notes that the Constitution also stipulates that the State shall guarantee to the communities of the Atlantic Coast the effectiveness of their forms of communal ownership. Referring to the progress made on the implementation of the “Plan for demarcation and titling with respect to the communal ownership system”, the Government indicates in its report that during the 2007–12 period 17 land titles were granted (three in the “special status zone”, 11 in the North Atlantic Autonomous Region and three in the South Atlantic Autonomous Region) covering 243 indigenous and Afro-Nicaraguan communities in an area of 29,078.75 km2. The Committee invites the Government to describe in its next report the forms of landholding practised by the indigenous peoples of the Pacific, Central and North regions of Nicaragua, and the steps that have been taken to identify the lands that they traditionally occupy and to guarantee the effective protection of their rights to these lands. The Committee also invites the Government to continue to provide information on progress made in the demarcation and titling process with respect to lands located in the autonomous regions of the Atlantic Coast.

Procedures for resolving land claims. The Committee notes the provisions relating to the resolution of land disputes contained in 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 and its implementing regulations. The Committee invites the Government to provide information in its next report on procedures for resolving land claims made by indigenous peoples and to include examples of the operation thereof throughout the country.

Article 15. Natural resources. The Committee notes that, under article 102 of the Constitution of Nicaragua, natural resources are part of the national heritage. Section 4(4) of the General Environment Act provides that the State shall recognize and support indigenous peoples and communities, from the autonomous, Pacific and Central regions alike, in their activities for conservation of the environment and sustainable use of natural resources. Section 9 of the Autonomy Charter provides that in the rational exploitation of mining, forestry, fishing and other natural resources of the autonomous regions the rights of ownership relating to communal lands shall be recognized and shall benefit their inhabitants proportionately through agreements between the regional and central governments. The Committee invites the Government to indicate what procedures exist to ensure that indigenous peoples can participate in the benefits of the activities referred to in Article 15 of the Convention. The Committee also requests the Government to provide information on the application in practice of the General Environment Act on the matters covered by the Convention.

Article 16. Relocation. The Committee invites the Government to indicate in its next report whether cases of relocation as provided for under Article 16(2) of the Convention have occurred and to indicate the procedures followed in any such cases.

Article 17. Transmission of land rights. Protection measures. The Committee notes that, under section 11(6) of the Autonomy Charter, the right to communal, collective and individual forms of ownership and the transmission thereof is recognized. The Committee invites the Government to indicate in its next report whether there are any restrictions on the right of the peoples concerned to dispose of their lands or otherwise transmit their land rights outside their own community. The Government is also invited to indicate what procedures have been established by the peoples concerned in the Pacific, Central and North regions for the transmission of land rights among their own members.

Article 19. National agrarian programmes. The Committee notes that the Urban and Rural Ownership Reform Act recognizes titles granted under agrarian reform to rural properties on the lands of indigenous communities. Under section 103 of the abovementioned Act, natural or legal persons that obtain titles under agrarian reform to rural properties on the lands of indigenous communities must pay a rental payment to the said communities. Under section 3 of the implementing regulations for the Act, the rental payment shall be fixed once the lands of the indigenous communities have been demarcated. The Committee invites the Government to send information in its next report on the agrarian programmes in progress and the manner in which lands are allocated and the necessary means granted for the development of lands that indigenous and Afro Nicaraguan peoples already possess. Please also include practical information on the rental payment paid to indigenous peoples as provided for in the legislation relating to the reform of urban and rural ownership.

Article 20. Recruitment and conditions of employment. Adequate labour inspection services. The Committee notes that the Act concerning the fair and decent treatment of indigenous and Afro-Nicaraguan peoples recognizes that it is the duty of the State to ensure the effectiveness of labour rights and the protection it affords to the indigenous and Afro-Nicaraguan peoples of the Caribbean Coast and Alto Wangki and the indigenous peoples of the Central, North and Pacific regions of Nicaragua, as regards access to public and private employment with full entitlement to decent work and pay and without any discriminatory treatment regarding conditions of work. The Committee invites the Government to indicate the impact of the abovementioned measures in its next report. The Committee also invites the Government to specify what measures have been taken to ensure adequate labour inspection in areas where workers belonging to the indigenous and Afro Nicaraguan peoples undertake employment.

Articles 21 and 22. Vocational training. Voluntary participation. The Committee notes that the responsibilities of the National Technological Institute (INATEC) include the implementation of vocational training programmes aimed at persons over 14 years of age and special population groups. Furthermore, the General Education Act establishes that the Ministry of Education, Culture and Sport (MECD) and INATEC shall coordinate all matters relating to the educational sub system of the autonomous regions with the respective regional governments. The 2011 Evaluation Document reports that an increase has been observed in the provision of technical training courses in all municipalities of the Caribbean Coast and improvements to the infrastructure have been made. The Committee invites the Government to provide information on the special training programmes that have been made available to the indigenous peoples concerned, the impact thereof and how the peoples concerned were consulted (Article 22(2) and (3)). The Government is also invited to indicate whether measures have been taken to enable the peoples concerned to assume responsibility for training programmes (Article 22(3)).

Article 23. Traditional activities. The Committee notes that the 2009 Development Plan and the 2012–16 Development Strategy recognize that fishing is a fundamental activity, directly linked to the life, culture and customs of the Caribbean. The Committee invites the Government to supply more information on the measures taken with the participation of the peoples concerned to apply Article 23 of the Convention.

Article 24. Social security. The Committee notes that the Ancestral Traditional Medicine Act provides that the State, in consultation with the indigenous and Afro-Nicaraguan peoples and communities, shall create special social security models within the field of ancestral traditional medicine. The Committee invites the Government to indicate whether existing social security schemes cover the peoples concerned, with respect both to wage earners among them and others, and, if so, to indicate what measures have been taken to extend such coverage. The Committee also invites the Government to supply information on the application in practice of the Ancestral Traditional Medicine Act.

Article 25. Health services. The Committee notes that the progress described by the Government in its report includes the construction of two new primary-care hospitals in Mulukuku and Alamikamba and a field hospital in Waspam and the impetus given to the inter-cultural health model in Alto Wangki Bocay, where the health units of the Amak, San Andrés and Raiti communities have been repaired and renovated. The 2012–16 Development Strategy refers to the process of transfer, transmission and delegation of competencies and duties under the Regional Health Strategy Framework Agreement. The Committee notes that the Ancestral Traditional Medicine Act provides that health services for indigenous and Afro-Nicaraguan peoples who practise ancestral traditional medicine must be implemented in accordance with the cultural values of each people. The General Health Act provides that the autonomous regions may define a health-care model in accordance with their traditions, culture, habits and customs within the framework of Ministry of Health policies, plans, programmes and projects. The autonomous regional councils may establish the health administrations that they consider appropriate for the administration of health services. The Committee invites the Government to include up-to-date information in its next report on the implementation of inter-cultural health models and the interaction between health centres or health posts and ancestral traditional medicine. The Committee also invites the Government to include information on existing health services in the regions inhabited by the indigenous and Afro-Nicaraguan peoples. Lastly, the Committee invites the Government to provide information on progress made in the implementation of the Regional Health Strategy Framework Agreement.

Articles 26 and 27. Education programmes and services. The Committee notes that curriculum development has been undertaken for the three levels of early education in the Miskito, Tuahka Panmáhka, Ulwa and Creole English languages, and that teachers have been trained to cater for more than 3,000 children. The Government also refers in its report to efforts to systematize the professional status and professional development for teachers without formal training at both primary and secondary level; to equip the education system with adequate financial and technical resources; and to increase the budget allocated to education. The autonomous regions have programmes and texts produced in the indigenous and Afro Nicaraguan languages but there is a lack of printing and distribution. The Committee invites the Government to include up-to-date information in its next report on the number and types of schools and the number of teachers throughout the country, and to indicate how it is ensured that education programmes and services also meet the particular needs of the indigenous peoples in the Pacific, Central and North regions. The Committee also invites the Government to indicate what measures have been taken for the training of members of the peoples concerned and for their involvement in the formulation and implementation of education programmes. The Government is also invited to include information on the measures taken to recognize the right of indigenous peoples to establish their own education institutions, services and facilities.

Articles 28 and 29. Bilingual inter-cultural education. Educational goals. The Committee notes that the Children and Young Persons’ Code provides that children and young persons belonging to indigenous and ethnic communities have the right to inter-cultural education in their mother tongue in their region and that children and young persons belonging to indigenous communities, ethnic or linguistic groups or of indigenous origin are also entitled to receive education in their own language. The Official Use of Languages Act provides that the State shall establish programmes to preserve, save and promote the Miskito, Sumo, Rama, Creole and Garífuna cultures, and also any other indigenous culture that still exists in the country, examining the future feasibility of education in their mother tongue. The Government indicates in its report that it is intended to draw up a plan for the preservation of original languages (Rama, Tuahka, Garífuna and Ulwa) and devise educational materials. The Committee invites the Government to include up-to-date information in its next report on the impact of the measures taken in the context of the educational sub-system of the autonomous regions. The Committee also invites the Government to include up-to-date information on the impact of the measures taken to give effect to Articles 28 and 29 of the Convention throughout the country.

Article 30. Awareness raising. The Government indicates in its report that in early 2010 the Ministry of Labour published the Labour Code in Miskito, distributing 2,000 copies in the North Atlantic and South Atlantic autonomous regions of Nicaragua, particularly in Bilwi, Puerto Cabezas and Bluefields. The Committee invites the Government to supply copies of documentary material used to inform the peoples concerned of their rights and obligations.

Article 31. Eliminating prejudices. The Committee invites the Government to include detailed information in its next report on the educational measures taken or planned for eliminating any prejudices that may be held against indigenous and Afro-Nicaraguan peoples.

Article 32. Cross-border cooperation. The Committee notes that the powers of the autonomous regions include that of establishing and promoting traditional exchanges with the nations and peoples of the Caribbean. Moreover, in the context of the implementation of the tourism development programme, the 2012–16 Development Strategy envisages the promotion of strategic alliances involving routes, destinations, tour operators, guides and national tourism tracks, with other countries of the Caribbean, Central and South America and the rest of the world where indigenous peoples, ethnic communities and other communities of African descent are to be found. The Committee invites the Government to indicate what other measures have been taken to give effect to Article 32 and in particular whether any international agreement to this effect has been concluded.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

The Committee notes that the Government indicates that there is recognition of the indigenous and Afro-Nicaraguan peoples of the Atlantic Coast and of the indigenous peoples of the Pacific, Central and North regions of Nicaragua, and also of their individual and collective fundamental rights. The Miskito, Mayangna and Rama indigenous peoples and the Creole and Garífuna ethnic and Afro-Nicaraguan communities located on the Caribbean Coast account for 10 per cent of the Nicaraguan population. The indigenous peoples descended from the Cacaopera, Chorotega, Xiu and Nahoa in the Pacific (departments of Riva, Masaya, León and Chinandega), Central (departments of Matagalpa and Jinotega) and North regions (departments of Nueva Segovia and Madriz) represent 6.07 per cent of the Nicaraguan population. In the 2005 population and housing census, data were collected on the population which had identified itself as belonging to indigenous or ethnic communities; out of a total national population of 5,142,098 inhabitants, a total of 443,847 people were covered by self-identification, the majority of which belonged to the Miskito people (slightly over 120,000 persons) and the Mestizos of the Caribbean Coast (slightly over 112,000 persons). The Committee notes the existence of the two autonomous regions of the Atlantic Coast, namely the South Atlantic Autonomous Region (RAAS) and the North Atlantic Autonomous Region (RAAN). The Committee considers that the Convention is fundamentally an instrument that favours dialogue and participation, and recalls that Part VIII of the report form states as follows: “Although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application.” The Committee invites the Government, when preparing its next report, to consult the social partners and indigenous organizations on the measures taken to give effect to the Convention. The Committee also invites the Government to provide a report containing detailed replies to the matters covered by the report form and to include full information on the points set out below.

Communication from the International Organisation of Employers (IOE). The Committee recalls that in September 2012 the Office forwarded to the Government the observations from the IOE on the application in law and practice of the requirement of consultation laid down by Articles 6, 7, 15 and 16 of the Convention. The IOE raised the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus among indigenous and tribal peoples regarding their internal procedures, and the importance for the Committee to be aware of the consequences of these issues in terms of legal certainty, financial costs and certainty of both public and private investment. The IOE referred to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also stated that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to provide its comments in this respect.

Articles 2 and 33 of the Convention. Coordinated and systematic action. Administration. The Committee notes the existence of a Commission for Ethnic Affairs, Autonomous Regimes and Indigenous Communities in the National Assembly and of the Secretariat for Indigenous Affairs within the Executive Authority. Two other entities are responsible for coordination among the autonomous authorities, the authorities of the indigenous peoples and the Executive Authority, the Secretariat for the Development of the Atlantic Coast and the Council for the Development of the Atlantic Coast, both departments being under the authority of the Presidency of the Republic. The administrative bodies of the autonomous regions include the Regional Council, the higher authority of the corresponding autonomous region, within which all ethnic communities of the respective autonomous region must be represented. The Government sent with its report the “Development Plan for the Caribbean Coast: En route to development” (2009 Development Plan), the “Evaluation Document for the Development Strategy for the Caribbean Coast and Alto Wangki” (2011 Evaluation Document), and the “Development Strategy for the Caribbean Coast and Alto Wangki Bocay” (2012–16 Development Strategy), which resulted from the cooperation between the Caribbean Coast Development Council, the autonomous regions and the territorial government of Alto Wangki Bocay. The Committee invites the Government to include in its next report an evaluation of the results of the aforementioned plans and strategies. It also invites the Government to indicate how the participation of the peoples concerned is ensured in the case of the programmes implemented outside the sphere of the autonomous regions (Article 2). Lastly, the Committee requests the Government to indicate what measures have been taken to ensure that the agencies which administer the programmes covered by the Convention have the means necessary for the proper fulfilment of their functions (Article 33(1)).

Article 6. Consultation. Institutions and initiatives. The Committee notes that all municipalities of the country have the obligation to consult the traditional authorities of the indigenous communities, in the context of municipal development programmes. In the autonomous regions there is also the obligation of civic consultation. The 2011 Evaluation Document indicates that eight indigenous and Afro-Nicaraguan territorial governments receive resources from the public investment programme to cover their own administration. The Committee invites the Government to supply information on the operation of the consultation procedures. The Committee also invites the Government to indicate the manner in which the participation of the descendants of the Cacaopera, Chorotega, Xiu and Nahoa peoples in decision-making is facilitated.

Article 7(1) and (2). Development process. Participation. Development plans. The Committee notes the existing bodies for civic participation with regard to the formulation of national and sectoral public policies. In the autonomous regions, the legislation relating to civic participation provides for the setting up of a regional council for economic and social planning with the participation of a delegate from the Council of Elders of each ethnic group in the autonomous region. The powers of the autonomous regions include effective participation in the formulation and implementation of national development plans and programmes in their regions. The Committee notes that the priorities identified in the 2009 Development Plan, the 2011 Evaluation Document and the 2012–16 Development Strategy include land tenure, food security, cultural revitalization, education, health, access to water, environmental balance and economic dynamism. The Committee invites the Government to include information in its next report on the measures taken to ensure the participation of all the peoples concerned in the formulation, implementation and evaluation of the measures and plans that affect them. The Committee also invites the Government to supply information on the activities of the Regional Council for Economic and Social Planning in relation to the matters covered by the Convention.

Article 7(3). Studies on the impact of development activities. Cooperation of indigenous peoples. The Committee notes the provisions of the environmental legislation concerning the declaration of protected areas and the implementation of scientific studies in protected areas located in indigenous community lands. With regard to their composition, sectoral national councils must include a representative of the autonomous regional governments and a delegate of each of the organizations of indigenous peoples, communities of the Atlantic Coast, and organizations representing women, young people, communities, children and persons with disabilities. The Committee invites the Government to include examples in its next report of studies assessing the social, spiritual and cultural impact of development activities on the peoples concerned. The Government is also invited to indicate how the cooperation of the peoples affected by the development activities is secured.

Article 8. Customary laws. The Committee notes that, under section 18 of the Charter establishing the autonomy of the regions of the Atlantic Coast (Autonomy Charter), the administration of justice in the autonomous regions shall be governed by special regulations that reflect the particular cultural features of the communities of the Atlantic Coast. The Committee invites the Government to include information in its next report on any procedures established for resolving conflicts that may arise (Article 8(2)) and to include examples of decisions where account has been taken of the customs or customary laws of the peoples concerned.

Article 9. Criminal penalties. The Committee notes that, under section 20(2) of the Penal Code, crimes and offences committed by members of the indigenous peoples and ethnic communities of the Atlantic Coast within and among their communities for which the penalty does not exceed five years’ imprisonment shall be tried in accordance with customary laws, subject to the provisions of the Constitution of Nicaragua. The Committee invites the Government to provide examples of the application in practice of this provision of the Convention throughout the country. The Committee also invites the Government to give examples of customary laws applied in relation to the matters covered by the Convention.

Article 14. Land. Forms of landholding. The Committee notes that the Constitution of Nicaragua recognizes the right of indigenous peoples to maintain communal forms of land ownership and the enjoyment and use thereof. The Government indicates in its report that the current legislation does not include regulating the system of communal ownership of the indigenous peoples of the Pacific, Central and North regions of the country. The Government adds that there are miscellaneous provisions in various agrarian property laws concerning communal ownership rights for indigenous peoples. The Committee notes that the Constitution also stipulates that the State shall guarantee to the communities of the Atlantic Coast the effectiveness of their forms of communal ownership. Referring to the progress made on the implementation of the “Plan for demarcation and titling with respect to the communal ownership system”, the Government indicates in its report that during the 2007–12 period 17 land titles were granted (three in the “special status zone”, 11 in the North Atlantic Autonomous Region and three in the South Atlantic Autonomous Region) covering 243 indigenous and Afro-Nicaraguan communities in an area of 29,078.75 km2. The Committee invites the Government to describe in its next report the forms of landholding practised by the indigenous peoples of the Pacific, Central and North regions of Nicaragua, and the steps that have been taken to identify the lands that they traditionally occupy and to guarantee the effective protection of their rights to these lands. The Committee also invites the Government to continue to provide information on progress made in the demarcation and titling process with respect to lands located in the autonomous regions of the Atlantic Coast.

Procedures for resolving land claims. The Committee notes the provisions relating to the resolution of land disputes contained in 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 and its implementing regulations. The Committee invites the Government to provide information in its next report on procedures for resolving land claims made by indigenous peoples and to include examples of the operation thereof throughout the country.

Article 15. Natural resources. The Committee notes that, under article 102 of the Constitution of Nicaragua, natural resources are part of the national heritage. Section 4(4) of the General Environment Act provides that the State shall recognize and support indigenous peoples and communities, from the autonomous, Pacific and Central regions alike, in their activities for conservation of the environment and sustainable use of natural resources. Section 9 of the Autonomy Charter provides that in the rational exploitation of mining, forestry, fishing and other natural resources of the autonomous regions the rights of ownership relating to communal lands shall be recognized and shall benefit their inhabitants proportionately through agreements between the regional and central governments. The Committee invites the Government to indicate what procedures exist to ensure that indigenous peoples can participate in the benefits of the activities referred to in Article 15 of the Convention. The Committee also requests the Government to provide information on the application in practice of the General Environment Act on the matters covered by the Convention.

Article 16. Relocation. The Committee invites the Government to indicate in its next report whether cases of relocation as provided for under Article 16(2) of the Convention have occurred and to indicate the procedures followed in any such cases.

Article 17. Transmission of land rights. Protection measures. The Committee notes that, under section 11(6) of the Autonomy Charter, the right to communal, collective and individual forms of ownership and the transmission thereof is recognized. The Committee invites the Government to indicate in its next report whether there are any restrictions on the right of the peoples concerned to dispose of their lands or otherwise transmit their land rights outside their own community. The Government is also invited to indicate what procedures have been established by the peoples concerned in the Pacific, Central and North regions for the transmission of land rights among their own members.

Article 19. National agrarian programmes. The Committee notes that the Urban and Rural Ownership Reform Act recognizes titles granted under agrarian reform to rural properties on the lands of indigenous communities. Under section 103 of the abovementioned Act, natural or legal persons that obtain titles under agrarian reform to rural properties on the lands of indigenous communities must pay a rental payment to the said communities. Under section 3 of the implementing regulations for the Act, the rental payment shall be fixed once the lands of the indigenous communities have been demarcated. The Committee invites the Government to send information in its next report on the agrarian programmes in progress and the manner in which lands are allocated and the necessary means granted for the development of lands that indigenous and Afro-Nicaraguan peoples already possess. Please also include practical information on the rental payment paid to indigenous peoples as provided for in the legislation relating to the reform of urban and rural ownership.

Article 20. Recruitment and conditions of employment. Adequate labour inspection services. The Committee notes that the Act concerning the fair and decent treatment of indigenous and Afro-Nicaraguan peoples recognizes that it is the duty of the State to ensure the effectiveness of labour rights and the protection it affords to the indigenous and Afro-Nicaraguan peoples of the Caribbean Coast and Alto Wangki and the indigenous peoples of the Central, North and Pacific regions of Nicaragua, as regards access to public and private employment with full entitlement to decent work and pay and without any discriminatory treatment regarding conditions of work. The Committee invites the Government to indicate the impact of the abovementioned measures in its next report. The Committee also invites the Government to specify what measures have been taken to ensure adequate labour inspection in areas where workers belonging to the indigenous and Afro-Nicaraguan peoples undertake employment.

Articles 21 and 22. Vocational training. Voluntary participation. The Committee notes that the responsibilities of the National Technological Institute (INATEC) include the implementation of vocational training programmes aimed at persons over 14 years of age and special population groups. Furthermore, the General Education Act establishes that the Ministry of Education, Culture and Sport (MECD) and INATEC shall coordinate all matters relating to the educational sub system of the autonomous regions with the respective regional governments. The 2011 Evaluation Document reports that an increase has been observed in the provision of technical training courses in all municipalities of the Caribbean Coast and improvements to the infrastructure have been made. The Committee invites the Government to provide information on the special training programmes that have been made available to the indigenous peoples concerned, the impact thereof and how the peoples concerned were consulted (Article 22(2) and (3)). The Government is also invited to indicate whether measures have been taken to enable the peoples concerned to assume responsibility for training programmes (Article 22(3)).

Article 23. Traditional activities. The Committee notes that the 2009 Development Plan and the 2012–16 Development Strategy recognize that fishing is a fundamental activity, directly linked to the life, culture and customs of the Caribbean. The Committee invites the Government to supply more information on the measures taken with the participation of the peoples concerned to apply Article 23 of the Convention.

Article 24. Social security. The Committee notes that the Ancestral Traditional Medicine Act provides that the State, in consultation with the indigenous and Afro-Nicaraguan peoples and communities, shall create special social security models within the field of ancestral traditional medicine. The Committee invites the Government to indicate whether existing social security schemes cover the peoples concerned, with respect both to wage earners among them and others, and, if so, to indicate what measures have been taken to extend such coverage. The Committee also invites the Government to supply information on the application in practice of the Ancestral Traditional Medicine Act.

Article 25. Health services. The Committee notes that the progress described by the Government in its report includes the construction of two new primary-care hospitals in Mulukuku and Alamikamba and a field hospital in Waspam and the impetus given to the inter-cultural health model in Alto Wangki Bocay, where the health units of the Amak, San Andrés and Raiti communities have been repaired and renovated. The 2012–16 Development Strategy refers to the process of transfer, transmission and delegation of competencies and duties under the Regional Health Strategy Framework Agreement. The Committee notes that the Ancestral Traditional Medicine Act provides that health services for indigenous and Afro-Nicaraguan peoples who practise ancestral traditional medicine must be implemented in accordance with the cultural values of each people. The General Health Act provides that the autonomous regions may define a health-care model in accordance with their traditions, culture, habits and customs within the framework of Ministry of Health policies, plans, programmes and projects. The autonomous regional councils may establish the health administrations that they consider appropriate for the administration of health services. The Committee invites the Government to include up-to-date information in its next report on the implementation of inter-cultural health models and the interaction between health centres or health posts and ancestral traditional medicine. The Committee also invites the Government to include information on existing health services in the regions inhabited by the indigenous and Afro-Nicaraguan peoples. Lastly, the Committee invites the Government to provide information on progress made in the implementation of the Regional Health Strategy Framework Agreement.

Articles 26 and 27. Education programmes and services. The Committee notes that curriculum development has been undertaken for the three levels of early education in the Miskito, Tuahka Panmáhka, Ulwa and Creole English languages, and that teachers have been trained to cater for more than 3,000 children. The Government also refers in its report to efforts to systematize the professional status and professional development for teachers without formal training at both primary and secondary level; to equip the education system with adequate financial and technical resources; and to increase the budget allocated to education. The autonomous regions have programmes and texts produced in the indigenous and Afro Nicaraguan languages but there is a lack of printing and distribution. The Committee invites the Government to include up-to-date information in its next report on the number and types of schools and the number of teachers throughout the country, and to indicate how it is ensured that education programmes and services also meet the particular needs of the indigenous peoples in the Pacific, Central and North regions. The Committee also invites the Government to indicate what measures have been taken for the training of members of the peoples concerned and for their involvement in the formulation and implementation of education programmes. The Government is also invited to include information on the measures taken to recognize the right of indigenous peoples to establish their own education institutions, services and facilities.

Articles 28 and 29. Bilingual inter-cultural education. Educational goals. The Committee notes that the Children and Young Persons’ Code provides that children and young persons belonging to indigenous and ethnic communities have the right to inter-cultural education in their mother tongue in their region and that children and young persons belonging to indigenous communities, ethnic or linguistic groups or of indigenous origin are also entitled to receive education in their own language. The Official Use of Languages Act provides that the State shall establish programmes to preserve, save and promote the Miskito, Sumo, Rama, Creole and Garífuna cultures, and also any other indigenous culture that still exists in the country, examining the future feasibility of education in their mother tongue. The Government indicates in its report that it is intended to draw up a plan for the preservation of original languages (Rama, Tuahka, Garífuna and Ulwa) and devise educational materials. The Committee invites the Government to include up-to-date information in its next report on the impact of the measures taken in the context of the educational sub-system of the autonomous regions. The Committee also invites the Government to include up-to-date information on the impact of the measures taken to give effect to Articles 28 and 29 of the Convention throughout the country.

Article 30. Awareness raising. The Government indicates in its report that in early 2010 the Ministry of Labour published the Labour Code in Miskito, distributing 2,000 copies in the North Atlantic and South Atlantic autonomous regions of Nicaragua, particularly in Bilwi, Puerto Cabezas and Bluefields. The Committee invites the Government to supply copies of documentary material used to inform the peoples concerned of their rights and obligations.

Article 31. Eliminating prejudices. The Committee invites the Government to include detailed information in its next report on the educational measures taken or planned for eliminating any prejudices that may be held against indigenous and Afro-Nicaraguan peoples.

Article 32. Cross-border cooperation. The Committee notes that the powers of the autonomous regions include that of establishing and promoting traditional exchanges with the nations and peoples of the Caribbean. Moreover, in the context of the implementation of the tourism development programme, the 2012–16 Development Strategy envisages the promotion of strategic alliances involving routes, destinations, tour operators, guides and national tourism tracks, with other countries of the Caribbean, Central and South America and the rest of the world where indigenous peoples, ethnic communities and other communities of African descent are to be found. The Committee invites the Government to indicate what other measures have been taken to give effect to Article 32 and in particular whether any international agreement to this effect has been concluded.

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

The Committee notes the Government’s first report on the application of the Convention received in September 2012. The Government indicates that there is recognition of the indigenous and Afro-Nicaraguan peoples of the Atlantic Coast and of the indigenous peoples of the Pacific, Central and North regions of Nicaragua, and also of their individual and collective fundamental rights. The Miskito, Mayangna and Rama indigenous peoples and the Creole and Garífuna ethnic and Afro-Nicaraguan communities located on the Caribbean Coast account for 10 per cent of the Nicaraguan population. The indigenous peoples descended from the Cacaopera, Chorotega, Xiu and Nahoa in the Pacific (departments of Riva, Masaya, León and Chinandega), Central (departments of Matagalpa and Jinotega) and North regions (departments of Nueva Segovia and Madriz) represent 6.07 per cent of the Nicaraguan population. In the 2005 population and housing census, data were collected on the population which had identified itself as belonging to indigenous or ethnic communities; out of a total national population of 5,142,098 inhabitants, a total of 443,847 people were covered by self-identification, the majority of which belonged to the Miskito people (slightly over 120,000 persons) and the Mestizos of the Caribbean Coast (slightly over 112,000 persons). The Committee notes the existence of the two autonomous regions of the Atlantic Coast, namely the South Atlantic Autonomous Region (RAAS) and the North Atlantic Autonomous Region (RAAN). The Committee considers that the Convention is fundamentally an instrument that favours dialogue and participation, and recalls that Part VIII of the report form states as follows: “Although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application.” The Committee invites the Government, when preparing its next report, to consult the social partners and indigenous organizations on the measures taken to give effect to the Convention. The Committee also invites the Government to provide a report containing detailed replies to the matters covered by the report form and to include full information on the points set out below.

Communication from the International Organisation of Employers (IOE). The Committee recalls that in September 2012 the Office forwarded to the Government the observations from the IOE on the application in law and practice of the requirement of consultation laid down by Articles 6, 7, 15 and 16 of the Convention. The IOE raised the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus among indigenous and tribal peoples regarding their internal procedures, and the importance for the Committee to be aware of the consequences of these issues in terms of legal certainty, financial costs and certainty of both public and private investment. The IOE referred to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also stated that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to include in its next report any comments that it sees fit to make on the observations made by the IOE.

Articles 2 and 33 of the Convention. Coordinated and systematic action. Administration. The Committee notes the existence of a Commission for Ethnic Affairs, Autonomous Regimes and Indigenous Communities in the National Assembly and of the Secretariat for Indigenous Affairs within the Executive Authority. Two other entities are responsible for coordination among the autonomous authorities, the authorities of the indigenous peoples and the Executive Authority, the Secretariat for the Development of the Atlantic Coast and the Council for the Development of the Atlantic Coast, both departments being under the authority of the Presidency of the Republic. The administrative bodies of the autonomous regions include the Regional Council, the higher authority of the corresponding autonomous region, within which all ethnic communities of the respective autonomous region must be represented. The Government sent with its report the “Development Plan for the Caribbean Coast: En route to development” (2009 Development Plan), the “Evaluation Document for the Development Strategy for the Caribbean Coast and Alto Wangki” (2011 Evaluation Document), and the “Development Strategy for the Caribbean Coast and Alto Wangki Bocay” (2012–16 Development Strategy), which resulted from the cooperation between the Caribbean Coast Development Council, the autonomous regions and the territorial government of Alto Wangki Bocay. The Committee invites the Government to include in its next report an evaluation of the results of the aforementioned plans and strategies. It also invites the Government to indicate how the participation of the peoples concerned is ensured in the case of the programmes implemented outside the sphere of the autonomous regions (Article 2). Lastly, the Committee requests the Government to indicate what measures have been taken to ensure that the agencies which administer the programmes covered by the Convention have the means necessary for the proper fulfilment of their functions (Article 33(1)).

Article 6. Consultation. Institutions and initiatives. The Committee notes that all municipalities of the country have the obligation to consult the traditional authorities of the indigenous communities, in the context of municipal development programmes. In the autonomous regions there is also the obligation of civic consultation. The 2011 Evaluation Document indicates that eight indigenous and Afro-Nicaraguan territorial governments receive resources from the public investment programme to cover their own administration. The Committee invites the Government to supply information on the operation of the consultation procedures. The Committee also invites the Government to indicate the manner in which the participation of the descendants of the Cacaopera, Chorotega, Xiu and Nahoa peoples in decision-making is facilitated.

Article 7(1) and (2). Development process. Participation. Development plans. The Committee notes the existing bodies for civic participation with regard to the formulation of national and sectoral public policies. In the autonomous regions, the legislation relating to civic participation provides for the setting up of a regional council for economic and social planning with the participation of a delegate from the Council of Elders of each ethnic group in the autonomous region. The powers of the autonomous regions include effective participation in the formulation and implementation of national development plans and programmes in their regions. The Committee notes that the priorities identified in the 2009 Development Plan, the 2011 Evaluation Document and the 2012–16 Development Strategy include land tenure, food security, cultural revitalization, education, health, access to water, environmental balance and economic dynamism. The Committee invites the Government to include information in its next report on the measures taken to ensure the participation of all the peoples concerned in the formulation, implementation and evaluation of the measures and plans that affect them. The Committee also invites the Government to supply information on the activities of the Regional Council for Economic and Social Planning in relation to the matters covered by the Convention.

Article 7(3). Studies on the impact of development activities. Cooperation of indigenous peoples. The Committee notes the provisions of the environmental legislation concerning the declaration of protected areas and the implementation of scientific studies in protected areas located in indigenous community lands. With regard to their composition, sectoral national councils must include a representative of the autonomous regional governments and a delegate of each of the organizations of indigenous peoples, communities of the Atlantic Coast, and organizations representing women, young people, communities, children and persons with disabilities. The Committee invites the Government to include examples in its next report of studies assessing the social, spiritual and cultural impact of development activities on the peoples concerned. The Government is also invited to indicate how the cooperation of the peoples affected by the development activities is secured.

Article 8. Customary laws. The Committee notes that, under section 18 of the Charter establishing the autonomy of the regions of the Atlantic Coast (Autonomy Charter), the administration of justice in the autonomous regions shall be governed by special regulations that reflect the particular cultural features of the communities of the Atlantic Coast. The Committee invites the Government to include information in its next report on any procedures established for resolving conflicts that may arise (Article 8(2)) and to include examples of decisions where account has been taken of the customs or customary laws of the peoples concerned.

Article 9. Criminal penalties. The Committee notes that, under section 20(2) of the Penal Code, crimes and offences committed by members of the indigenous peoples and ethnic communities of the Atlantic Coast within and among their communities for which the penalty does not exceed five years’ imprisonment shall be tried in accordance with customary laws, subject to the provisions of the Constitution of Nicaragua. The Committee invites the Government to provide examples of the application in practice of this provision of the Convention throughout the country. The Committee also invites the Government to give examples of customary laws applied in relation to the matters covered by the Convention.

Article 14. Land. Forms of landholding. The Committee notes that the Constitution of Nicaragua recognizes the right of indigenous peoples to maintain communal forms of land ownership and the enjoyment and use thereof. The Government indicates in its report that the current legislation does not include regulating the system of communal ownership of the indigenous peoples of the Pacific, Central and North regions of the country. The Government adds that there are miscellaneous provisions in various agrarian property laws concerning communal ownership rights for indigenous peoples. The Committee notes that the Constitution also stipulates that the State shall guarantee to the communities of the Atlantic Coast the effectiveness of their forms of communal ownership. Referring to the progress made on the implementation of the “Plan for demarcation and titling with respect to the communal ownership system”, the Government indicates in its report that during the 2007–12 period 17 land titles were granted (three in the “special status zone”, 11 in the North Atlantic Autonomous Region and three in the South Atlantic Autonomous Region) covering 243 indigenous and Afro-Nicaraguan communities in an area of 29,078.75 km2. The Committee invites the Government to describe in its next report the forms of landholding practised by the indigenous peoples of the Pacific, Central and North regions of Nicaragua, and the steps that have been taken to identify the lands that they traditionally occupy and to guarantee the effective protection of their rights to these lands. The Committee also invites the Government to continue to provide information on progress made in the demarcation and titling process with respect to lands located in the autonomous regions of the Atlantic Coast.

Procedures for resolving land claims. The Committee notes the provisions relating to the resolution of land disputes contained in 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 and its implementing regulations. The Committee invites the Government to provide information in its next report on procedures for resolving land claims made by indigenous peoples and to include examples of the operation thereof throughout the country.

Article 15. Natural resources. The Committee notes that, under article 102 of the Constitution of Nicaragua, natural resources are part of the national heritage. Section 4(4) of the General Environment Act provides that the State shall recognize and support indigenous peoples and communities, from the autonomous, Pacific and Central regions alike, in their activities for conservation of the environment and sustainable use of natural resources. Section 9 of the Autonomy Charter provides that in the rational exploitation of mining, forestry, fishing and other natural resources of the autonomous regions the rights of ownership relating to communal lands shall be recognized and shall benefit their inhabitants proportionately through agreements between the regional and central governments. The Committee invites the Government to indicate what procedures exist to ensure that indigenous peoples can participate in the benefits of the activities referred to in Article 15 of the Convention. The Committee also requests the Government to provide information on the application in practice of the General Environment Act on the matters covered by the Convention.

Article 16. Relocation. The Committee invites the Government to indicate in its next report whether cases of relocation as provided for under Article 16(2) of the Convention have occurred and to indicate the procedures followed in any such cases.

Article 17. Transmission of land rights. Protection measures. The Committee notes that, under section 11(6) of the Autonomy Charter, the right to communal, collective and individual forms of ownership and the transmission thereof is recognized. The Committee invites the Government to indicate in its next report whether there are any restrictions on the right of the peoples concerned to dispose of their lands or otherwise transmit their land rights outside their own community. The Government is also invited to indicate what procedures have been established by the peoples concerned in the Pacific, Central and North regions for the transmission of land rights among their own members.

Article 19. National agrarian programmes. The Committee notes that the Urban and Rural Ownership Reform Act recognizes titles granted under agrarian reform to rural properties on the lands of indigenous communities. Under section 103 of the abovementioned Act, natural or legal persons that obtain titles under agrarian reform to rural properties on the lands of indigenous communities must pay a rental payment to the said communities. Under section 3 of the implementing regulations for the Act, the rental payment shall be fixed once the lands of the indigenous communities have been demarcated. The Committee invites the Government to send information in its next report on the agrarian programmes in progress and the manner in which lands are allocated and the necessary means granted for the development of lands that indigenous and Afro-Nicaraguan peoples already possess. Please also include practical information on the rental payment paid to indigenous peoples as provided for in the legislation relating to the reform of urban and rural ownership.

Article 20. Recruitment and conditions of employment. Adequate labour inspection services. The Committee notes that the Act concerning the fair and decent treatment of indigenous and Afro-Nicaraguan peoples recognizes that it is the duty of the State to ensure the effectiveness of labour rights and the protection it affords to the indigenous and Afro-Nicaraguan peoples of the Caribbean Coast and Alto Wangki and the indigenous peoples of the Central, North and Pacific regions of Nicaragua, as regards access to public and private employment with full entitlement to decent work and pay and without any discriminatory treatment regarding conditions of work. The Committee invites the Government to indicate the impact of the abovementioned measures in its next report. The Committee also invites the Government to specify what measures have been taken to ensure adequate labour inspection in areas where workers belonging to the indigenous and Afro-Nicaraguan peoples undertake employment.

Articles 21 and 22. Vocational training. Voluntary participation. The Committee notes that the responsibilities of the National Technological Institute (INATEC) include the implementation of vocational training programmes aimed at persons over 14 years of age and special population groups. Furthermore, the General Education Act establishes that the Ministry of Education, Culture and Sport (MECD) and INATEC shall coordinate all matters relating to the educational sub-system of the autonomous regions with the respective regional governments. The 2011 Evaluation Document reports that an increase has been observed in the provision of technical training courses in all municipalities of the Caribbean Coast and improvements to the infrastructure have been made. The Committee invites the Government to provide information on the special training programmes that have been made available to the indigenous peoples concerned, the impact thereof and how the peoples concerned were consulted (Article 22(2) and (3)). The Government is also invited to indicate whether measures have been taken to enable the peoples concerned to assume responsibility for training programmes (Article 22(3)).

Article 23. Traditional activities. The Committee notes that the 2009 Development Plan and the 2012–16 Development Strategy recognize that fishing is a fundamental activity, directly linked to the life, culture and customs of the Caribbean. The Committee invites the Government to supply more information on the measures taken with the participation of the peoples concerned to apply Article 23 of the Convention.

Article 24. Social security. The Committee notes that the Ancestral Traditional Medicine Act provides that the State, in consultation with the indigenous and Afro-Nicaraguan peoples and communities, shall create special social security models within the field of ancestral traditional medicine. The Committee invites the Government to indicate whether existing social security schemes cover the peoples concerned, with respect both to wage earners among them and others, and, if so, to indicate what measures have been taken to extend such coverage. The Committee also invites the Government to supply information on the application in practice of the Ancestral Traditional Medicine Act.

Article 25. Health services. The Committee notes that the progress described by the Government in its report includes the construction of two new primary-care hospitals in Mulukuku and Alamikamba and a field hospital in Waspam and the impetus given to the inter-cultural health model in Alto Wangki Bocay, where the health units of the Amak, San Andrés and Raiti communities have been repaired and renovated. The 2012–16 Development Strategy refers to the process of transfer, transmission and delegation of competencies and duties under the Regional Health Strategy Framework Agreement. The Committee notes that the Ancestral Traditional Medicine Act provides that health services for indigenous and Afro-Nicaraguan peoples who practise ancestral traditional medicine must be implemented in accordance with the cultural values of each people. The General Health Act provides that the autonomous regions may define a health-care model in accordance with their traditions, culture, habits and customs within the framework of Ministry of Health policies, plans, programmes and projects. The autonomous regional councils may establish the health administrations that they consider appropriate for the administration of health services. The Committee invites the Government to include up-to-date information in its next report on the implementation of inter-cultural health models and the interaction between health centres or health posts and ancestral traditional medicine. The Committee also invites the Government to include information on existing health services in the regions inhabited by the indigenous and Afro-Nicaraguan peoples. Lastly, the Committee invites the Government to provide information on progress made in the implementation of the Regional Health Strategy Framework Agreement.

Articles 26 and 27. Education programmes and services. The Committee notes that curriculum development has been undertaken for the three levels of early education in the Miskito, Tuahka Panmáhka, Ulwa and Creole English languages, and that teachers have been trained to cater for more than 3,000 children. The Government also refers in its report to efforts to systematize the professional status and professional development for teachers without formal training at both primary and secondary level; to equip the education system with adequate financial and technical resources; and to increase the budget allocated to education. The autonomous regions have programmes and texts produced in the indigenous and Afro Nicaraguan languages but there is a lack of printing and distribution. The Committee invites the Government to include up-to-date information in its next report on the number and types of schools and the number of teachers throughout the country, and to indicate how it is ensured that education programmes and services also meet the particular needs of the indigenous peoples in the Pacific, Central and North regions. The Committee also invites the Government to indicate what measures have been taken for the training of members of the peoples concerned and for their involvement in the formulation and implementation of education programmes. The Government is also invited to include information on the measures taken to recognize the right of indigenous peoples to establish their own education institutions, services and facilities.

Articles 28 and 29. Bilingual inter-cultural education. Educational goals. The Committee notes that the Children and Young Persons’ Code provides that children and young persons belonging to indigenous and ethnic communities have the right to inter-cultural education in their mother tongue in their region and that children and young persons belonging to indigenous communities, ethnic or linguistic groups or of indigenous origin are also entitled to receive education in their own language. The Official Use of Languages Act provides that the State shall establish programmes to preserve, save and promote the Miskito, Sumo, Rama, Creole and Garífuna cultures, and also any other indigenous culture that still exists in the country, examining the future feasibility of education in their mother tongue. The Government indicates in its report that it is intended to draw up a plan for the preservation of original languages (Rama, Tuahka, Garífuna and Ulwa) and devise educational materials. The Committee invites the Government to include up-to-date information in its next report on the impact of the measures taken in the context of the educational sub-system of the autonomous regions. The Committee also invites the Government to include up-to-date information on the impact of the measures taken to give effect to Articles 28 and 29 of the Convention throughout the country.

Article 30. Awareness raising. The Government indicates in its report that in early 2010 the Ministry of Labour published the Labour Code in Miskito, distributing 2,000 copies in the North Atlantic and South Atlantic autonomous regions of Nicaragua, particularly in Bilwi, Puerto Cabezas and Bluefields. The Committee invites the Government to supply copies of documentary material used to inform the peoples concerned of their rights and obligations.

Article 31. Eliminating prejudices. The Committee invites the Government to include detailed information in its next report on the educational measures taken or planned for eliminating any prejudices that may be held against indigenous and Afro-Nicaraguan peoples.

Article 32. Cross-border cooperation. The Committee notes that the powers of the autonomous regions include that of establishing and promoting traditional exchanges with the nations and peoples of the Caribbean. Moreover, in the context of the implementation of the tourism development programme, the 2012–16 Development Strategy envisages the promotion of strategic alliances involving routes, destinations, tour operators, guides and national tourism tracks, with other countries of the Caribbean, Central and South America and the rest of the world where indigenous peoples, ethnic communities and other communities of African descent are to be found. The Committee invites the Government to indicate what other measures have been taken to give effect to Article 32 and in particular whether any international agreement to this effect has been concluded.

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