REPRESENTATION (article 24) - COLOMBIA - C169 - 2001

Central Unitary Workers' Union (CUT)

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Report of the Committee set up to examine the representation alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Central Unitary Workers' Union (CUT)

Report of the Committee set up to examine the representation alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Central Unitary Workers' Union (CUT)

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

Third Supplementary Report: Representation alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Single Confederation of Workers of Colombia (CUT)
I. Introduction
1. In a communication dated 29 October 1999, received by the Office on 5 November 1999, the Single Confederation of Workers of Colombia (CUT) made a representation under article 24 of the Constitution of the International Labour Organization, in which it alleges that the Government of Colombia has failed to secure the effective observance of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).
2. Colombia ratified Convention No. 169 on 7 August 1991, and the Convention is in force in that country.
3. The provisions of the Constitution of the International Labour Organization relating to the submission of representations are as follows:
Article 24
Representations of non-observance of Conventions
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
Publication of representation
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure to be followed for representations is based on the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the ILO Constitution, as revised by the Governing Body at its 212th Session (March 1980).
5. In accordance with articles 1 and 2, paragraph 1, of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Colombia thereof in a letter dated 11 November 1999, and brought the matter before the Officers of the Governing Body.
6. At its 276th Session (November 1999), the Governing Body, on the recommendation of its Officers, decided that the representation was receivable and appointed a tripartite Committee for its examination, made up of Ms. L.S. Sosa Márquez (Government member, Mexico), Mr. Francisco Díaz Garaycoa (Employer member, Ecuador) and Mr. F. Ramírez Léon (Worker member, Venezuela). Mr. Díaz Garaycoa was unable to attend when the Committee considered the present report for adoption. He had received copies of all the relevant documents, including the draft of this report, concerning which he expressed no reservations.
7. In accordance with the provisions contained in article 4, paragraph 1(a) and (c), of the Standing Orders, the Committee invited the Government to present its observations concerning the representation, and invited the complainant to submit any additional information that it wished to make known to the Committee.
8. The Government's official reply on the representation was received by electronic mail on 5 February 2001.
9. The tripartite Committee met during the 280th Session of the Governing Body (March 2001). In accordance with articles 4(1)(a) and 5(1) of the Standing Orders, the Committee decided to defer the adoption of its report in order to allow the parties to send additional information. In communications dated 23 April 2001, the Committee asked the Government and the CUT to provide additional information before 1 July 2001 on a number of questions raised by the Committee and of relevance to the representation.
10. The CUT sent its reply to the Committee's request in a communication dated 27 June 2001. The Office forwarded a copy of the reply to the Government on 6 August 2001.
11. The Government supplied information in reply to the Committee's request in a communication dated 31 July 2001, which was received by the Office on 23 August 2001.
12. The Committee met again during the 282nd Session of the Governing Body (November 2001) and, having examined the information supplied by the parties, as well as other information available to the Office, adopted the present report.
II. Examination of the representation
A. Allegations made by the complainant
13. The Single Confederation of Workers of Colombia (CUT) alleges that the Colombian Government has failed to secure the effective observance within its jurisdiction of the Indigenous and Tribal Peoples Convention, 1989 (No. 169). The CUT quotes three specific cases in which it considers that the Government has violated the Convention, namely: the promulgation of Decree No. 1320 of July 1998 on prior consultation; the work on the Troncal del Café highway, which cuts through the Cristianía Reservation, without previously consulting the indigenous community involved; and the issuing of a petroleum exploration licence to Occidental of Colombia (subsequently referred to as Occidental) without conducting the requisite prior consultations with the U'wa indigenous community.
1. Decree No. 1320
14. The CUT states that on 13 July 1998 the Government promulgated Decree No. 1320, which "establishes provisions for the process of consultation with the indigenous and black communities prior to exploitation of renewable natural resources found within their territories". According to the CUT, in enacting the Decree the Government failed to consult the indigenous peoples of Colombia, to take any coordinated action to protect the rights of the indigenous communities or to respect the latter's customs, traditions and institutions.
15. The CUT further alleges that Decree No. 1320 unduly restricts, rather than facilitates, the process of prior consultation. It maintains that regulation of the process as prescribed by the Decree fails to take account of the different ways of thinking and concepts of time and space of the various indigenous peoples living on Colombian territory, and that both the promulgation and content of the Decree violate Articles 2(1), 2(2)(b), 4(1) and (2), 6, 7 and 15(1) of the Convention.
16. As regards the issuing of the Decree, the CUT indicates that although this was the subject of extensive consultation and discussion, this involved only the President of the Republic and the Ministers of the Interior, the Environment and Mines and Energy. Although a few meetings were held at the initiative of the Ministries of the Interior and the Environment on the issue of prior consultation, the authorities and organizations representing indigenous communities have indicated that the meetings were intended merely to provide information on the Government's proposals and did not constitute a genuine process of consultation about the draft legislation under discussion.
17. The CUT maintains not only that there was a failure to comply with the obligation to carry out prior consultations with the indigenous peoples concerned, as required by Convention No. 169, but that there was also a failure to consult the organizations to which the Government had entrusted responsibility for indigenous affairs. In this regard, the CUT indicates that, although section 12(9) of Decree No. 1397 of 1996 stipulates that "the Standing Committee for Coordination between Indigenous Peoples and Organizations shall aim to provide coordination between the latter and the State with regard to all administrative and legislative decisions that are likely to affect them", the Government did not make use of this body before issuing Decree No. 1320.
18. The CUT also refers to a communication dated 22 July 1997 and addressed to Dr. Alfonso López Caballero, then Minister of the Interior, by the Director-General of Indigenous Affairs at the Ministry of the Interior, which draws attention to the "illegality of issuing such a regulation without conducting prior consultations, as required by Act No. 21 of 1991". The communication goes on to state that "the Decree was issued on the same day, without any consultation with this Directorate regarding its views on the proposed project, despite the fact that the General Directorate of Indigenous Affairs is the body which by virtue of its legal powers (under Act No. 199 and Decree No. 0372 of 1996) has been coordinating consultations with the indigenous peoples ...". In addition, the CUT cites a communication dated 3 August 1998 addressed to the Minister of the Environment by the Chief of the Advisory Office for Environmental Education, Citizens' Participation and Population, according to which "despite the fact that consultation with the representative authorities of the indigenous peoples and the black communities was obligatory, no such consultation took place".
19. The CUT also states that the Constitutional Court of Colombia, in its Ruling No. T-652 of 1998, suspended application of Decree No. 1320 in respect of the consultation process with the Embera Katío indigenous communities of the upper Sinú region, who are currently facing the prospect of the construction and operation of a hydroelectric dam on their ancestral territory. The CUT maintains that, although the Constitutional Court in Colombia has no authority to rule that national legislation is unconstitutional erga omnes, its ruling clearly shows that Decree No. 1320 of 1998 is not consistent with national and international standards, including Convention No. 169.
20. The CUT reports that the Awa indigenous community filed an application with the Administrative Court of the First Section of the Council of State to declare Decree No. 1320 of 1998 invalid. The Council did not declare the Decree void, and consequently it remains in force.
2. Works on the Troncal del Café highway and the indigenous community of Cristianía
21. The CUT states that the Cristianía community comprises 1,200 members of the Embera Chamí people and that it is located in the south-east of the Department of Antioquia, between the municipalities of Andes and Jardín. The complainant alleges that the Embera Chamí indigenous community of the Cristianía Indigenous Reserve has suffered damage to its productive, housing and health infrastructure as a result of the work to widen, straighten and surface the Troncal del Café highway, which cuts through the reserve in question. The annexes supplied by the complainant indicate that there is a geological fault in the territory where the Cristianía indigenous community is established. It is also stated that, during the period in which the alleged damage took place, the private consortium Solarte and the National Highways Fund of the Ministry of Public Works and Transport (now entitled the National Roads Institute and Ministry of Transport, respectively) were carrying out the work in question on the Troncal del Café at the level of the fault. The CUT indicates that the work in question involved much movement of heavy machinery and dumper trucks, dynamiting, dumping of rocks and stones, and the opening up of a trench 400 metres long and up to 30 metres deep, which altered the normal movement of underground water. It is alleged that all these activities together contributed to leaching salt from the geological fault which had previously remained stable.
22. According to the information provided in the annexes, the damage affected the buildings located near the highway, the local mill, the coffee processing plant, a stable and a number of corrals and dwellings, presumably as a result of the earthworks, which included the use of dynamite and the dumping of excavated soil on part of the community's land. The CUT maintains that, although the highway cuts across the Cristianía Reservation, the National Roads Institute (Invías), wishing to speed up operations, did not consult the indigenous community concerned or take the necessary measures to limit the adverse impact of the roadworks. The CUT states that during 1992, the National Institute of Renewable Natural Resources and the Environment (INDERENA) in the Antioquia region imposed a sanction on the then Ministry of Public Works and Transport for failure to conduct an environmental impact study before carrying out work on the highway, in contravention of the standards established in the Natural Resources and Environment Code.
23. The complainant maintains that, in view of the manner in which the process of widening and surfacing the Troncal del Café highway was carried out, the Government failed to take action consistent with its obligation to protect the rights and integrity of the indigenous community concerned and to adopt special measures for protecting its members, institutions, property, labour, culture and environment; that the Government did not consult the community about the launching of these activities, which directly affected it, and did not take account of the community's own development needs or carry out a study, involving those concerned, to assess the possible social, spiritual, cultural and environmental impact of the planned measures; and, finally, that it failed to take steps to protect and preserve the Cristianía Indigenous Reserve's natural environment. The CUT alleges that the Government's actions violated Articles 2(1), 4(1), 6, 7, 12, 13 and 16(5) of the Convention.
24. According to the CUT, claims were lodged with the national courts for damages sustained as a result of the highway project. Although the Colombian Constitutional Court recognized the rights of the Embera Chamí indigenous people, these were disregarded in later rulings handed down by lower courts. In its representation, the CUT details the actions brought by the Cristianía community. It states that in November 1991 the community brought court protection (tutela) proceedings before the Civil Court of the Andes Circuit, which, however, declared them inadmissible. The community then appealed to the Civil Division of the Antioquia High Court, which confirmed the original decision of the Andes circuit court. In its review, the Constitutional Court declared the tutela proceedings admissible and ruled, inter alia, that all work on the highway was to be suspended. (Endnote 1) It further ordered that the company was to take steps to prevent the community concerned from suffering any further damages and to grant it financial compensation in an amount equivalent to the value of the damages sustained, as soon as the authorities were provided with evidence of such damages.
25. It is alleged that, as a result of the Constitutional Court ruling, an application for damages was presented to the Antioquia Administrative Court on 18 December 1992 in an attempt to establish the precise extent of damages suffered by the Cristianía community. According to the CUT, the First Section of the Antioquia Administrative Court, in a ruling of 26 January 1995, put an end to the proceedings at the lower level. It is alleged that the Antioquia Administrative Court, despite being a lower-level court without the authority to do so, in essence set aside the ruling of the Constitutional Court by concluding, inter alia, that there was no causal relationship between the work on the highway and the damage suffered by the community, and thus overruled the order to suspend the work. According to the CUT, the Council of State, in its Order of 22 September 1995, reiterated the arguments of the Antioquia Administrative Court.
26. The complainant states that in the middle of 1997, the community lodged an application for protection (tutela) with the Criminal Division of the Antioquia Higher Court against the consortium Solarte and the Government of Colombia, as well as the First Section of the Antioquia Administrative Court and the Third Section of the Council of State. Despite this, the CUT states that both at first and second instance, the application was rejected. The CUT states that the Constitutional Court did not review the decision of the Court of first instance. It is also stated that the defendants never complied with the injunctions contained in Constitutional Court Ruling No. T-428 of 24 June 1992.
27. The CUT states that the damages suffered by the Cristianía community up until 17 November 1992, including the resulting material and moral damages and loss of income, amount to US$256,125.564. The CUT indicates that to date, the Government "has not taken even minimal action to provide compensation in whole or in part for this damage".
3. Issuing of an environmental licence for Occidental of Colombia to conduct petroleum exploration in U'wa territory
28. The CUT alleges that the Government of Colombia, acting through the Ministry of the Environment, issued an environmental licence for Occidental to begin petroleum exploration activities in U'wa territory, without previously consulting the indigenous community affected. The CUT maintains, moreover, that the Government granted the exploration licence without taking coordinated action to protect the rights of the indigenous peoples concerned and without respecting their social and cultural identity, customs, traditions and institutions, thereby violating its obligation to adopt measures to safeguard the integrity of these indigenous groups and failing to take into account the integrity of U'wa territory in general and the wishes expressed by the communities in question. The CUT alleges that these actions violate Articles 2(1), 2(2)(b), 4(1) and (2), 6, 7, 13, 14 and 15 of the Convention.
29. The CUT indicates that the approximately 5,000-strong U'wa indigenous community lives in the north-east of the country, at the foot of the Sierra Nevada del Cocuy, spanning the departments of Arauca, Boyacá, Casanare, Norte de Santander and Santander. According to the CUT, the ancestral homelands of the U'wa used to cover an extensive area between the western slopes of the Sierra Nevada del Cocuy-Guicán in the south and the Sierra de Mérida (Venezuela) in the north and between the middle reaches of the Chicamocha river in the west and the foothills between the Arauca and Casanare rivers in the east. The CUT states that this original area has shrunk by 90 per cent.
30. The CUT also indicates that the U'wa, like other indigenous peoples, consider the land essential to their survival not only as individuals but as a people with its own particular characteristics. For the U'wa, the extraction of any component of indigenous territory that is not undertaken in accordance with their own cultural rules affects their vision of the universe and undermines their cultural integrity as a people.
31. The CUT points out that the Gibraltar 1 exploratory well project is being carried out in the territory of the commune of Samoré (Municipality of Toledo, Department of Norte de Santander), which is currently the subject of a dispute between the Departments of Boyacá and Norte de Santander and hence does not lie within any political or administrative jurisdiction. According to the CUT, the project's immediate area of operations cuts across the boundaries of the current U'wa reserve and the indigenous community of Santa Marta, located in ancestral U'wa territory.
32. In 1992 and 1998 respectively, Occidental allegedly applied for two environmental licences to operate in the same region. On 21 September 1992, Occidental, the licence operator, initiated negotiations with the then National Institute of Renewable Natural Resources and the Environment (INDERENA) with a view to obtaining a licence to conduct seismic exploration activities as part of a project known as "seismic exploitation of the Samoré block", the purpose of which was to determine the existence of likely wells and petroleum deposits. The project was located in a zone encompassing a reserve, a reservation and traditional U'wa lands. It is clear from the annexes provided by the CUT, that the U'wa community was not involved in the environmental impact study. (Endnote 2) INDERENA's Subdivisions for the Environment and for Forests, Water and Soil Management carried out various studies that served as a basis for establishing the technical feasibility of the project. The Ministry of the Environment's Subdirectorate of Environmental Regulation and Evaluation issued Technical Report No. 90 dated 19 July 1994, which also viewed the project as feasible; the report, however, drew attention to community and citizen participation, particularly as regards the U'wa ethnic group settled within the project's area of operations, "specifically in matters concerning prior consultation". (Endnote 3) For the purposes of issuing the environmental licence, the Ministry of the Environment regarded the meeting held in the town of Arauca on 10 and 11 January 1995 (involving members of the U'wa community and representatives of the Ministries of Mines and Energy and the Environment, ECOPETROL and Occidental) as prior consultation. (Endnote 4) The Ministry of the Environment granted the environmental licence for petroleum exploration on 3 February 1995. On 21 February 1995, after the licence had been issued, a further meeting took place in Arauca with the participation of a number of U'wa representatives. (Endnote 5)
33. Immediately after the licence was granted, the Ombudsman (Defensor del Pueblo), acting on behalf of the U'wa, initiated tutela proceedings before the Bogotá High Court against Occidental and the Ministry of the Environment, arguing that the right of the U'wa people to prior consultation had been violated. The Bogotá High Court ruled in favour of the U'wa. Occidental appealed to the Supreme Court of Colombia against the decision, and the Supreme Court ruled that Occidental had conducted a valid process of prior consultation.
34. On 29 August 1995, the Ombudsman filed an application for a judicial review with the Constitutional Court which, in its Ruling SU-039 of 3 February 1997, rendered judgement in favour of the U'wa people. The Court noted that, according to the U'wa community, the Interior Ministry's General Directorate of Indigenous Affairs and the judicial investigation ordered by the Court and conducted in the territories inhabited by the community, the prior consultation prescribed by the Constitution and national and international standards had been "initiated but not completed with the convening of the meeting on 10 and 11 January 1995 (...)". (Endnote 6) The Court concluded that, at the meeting of 10 and 11 January 1995, "no steps had been taken to structure or plan the consultation required before granting the environmental licence. Consultation should take place before the licence is issued, and actions subsequent to the granting of a licence and aimed at making up for the lack of consultation carry no value or significance". (Endnote 7) The Constitutional Court therefore ruled that the fundamental right of the U'wa to prior consultation had been violated, and set a 30-day deadline for consulting the community in question.
35. Alongside the application for review, the Office of the Ombudsman applied to the Council of State to declare invalid the environmental licence issued to Occidental. The Council concluded that prior consultation with the U'wa had indeed been conducted and that consequently the environmental licence was valid. According to the CUT, the ruling handed down by the Council enabled Occidental to launch its exploration activities in U'wa ancestral territory.
36. On 16 October 1998, Occidental applied to the Ministry of the Environment for an environmental licence to drill the Gibraltar 1 exploratory well in the Samoré block. The CUT indicates that the U'wa voiced their opposition to the project, since the drilling would be carried out in ancestral U'wa territory and would undermine the community's territorial and cultural integrity. The CUT maintains that, as the project affected the U'wa people, prior consultation was mandatory.
37. In a communication dated 9 December 1998, the Ministry of the Interior, through its General Directorate of Indigenous Affairs, informed the Ministry of the Environment that the project's area of operations would not affect indigenous communities. In a communication dated 22 December 1998, the Sub-department of Social Management of Property of the National Land Reform Institute (INCORA) reported that, although INCORA had not yet established any reserve in the zone covered by the project, it was moving ahead with the "procedures for the establishment of the Single U'wa Reserve, within the boundaries that will be defined according to whether part of the Gibraltar 1 exploration zone remains included". The CUT maintains that the Ministry of the Environment should have taken this last paragraph of the communication into account in its decision to grant Occidental an environmental licence.
38. The CUT indicates that the Ministry of the Environment's Advisory Office for Environmental Education, Citizens' Participation and Population, in a communication dated 22 February 1999, (Endnote 8) acknowledged that "it is vital to conduct a process of prior consultation with the legitimate representatives of the U'wa indigenous authorities before granting an environmental licence for the Gibraltar 1 exploratory well project". The communication also states that "the documents in the file, as well as those examined by the Ministry of the Environment in order to certify that the Single U'wa Reserve fulfils an ecological function, clearly show that the area of operations of the Gibraltar drilling project encompasses traditional or ancestral land and that part of the area covers indigenous territory that is about to be officially recognized as such".
39. On 12 August 1999, Occidental informed the Ministry of the Environment that it had modified the coordinates of the exploratory drilling area and the location of the Gibraltar 1 exploratory well.
40. According to the annexes provided by the CUT, Technical Report No. 30599 issued by the Ministry of the Environment on 13 September 1999 states that, in a letter dated 5 February 1999, the National Organization of Indigenous Peoples of Colombia (ONIC), acting on behalf of the U'wa community, expressed the wish to intervene in the administrative process regarding the granting of the environmental licence. The annexes also include a letter of the CUT dated 4 February 1999, in which the ONIC informs the Ministry of the Environment of the impact on U'wa indigenous territory of the exploratory drilling project, "not only because part of (the project's area of operations) is located on traditional land, but also because another part is adjacent to the land in question". The CUT alleges that since the project affected the U'wa people, prior consultation was mandatory.
41. Technical Report No. 30599 indicates that the project "consists in developing petroleum exploration activities in a block situated in the eastern foothills of the Cordillera Oriental, in the Municipality of Toledo (Department of Norte de Santander), between the districts of Cedeño and Mundo Nuevo". 9 It is clear from the report that the logistics involve, inter alia, the installation of equipment as well as basic and support infrastructure and the mobilization of personnel. (Endnote 10) The report further indicates that an ethnographic study of the project area was carried out with the participation of several members of the U'wa indigenous community. (Endnote 11)
42. According to the CUT, the official document sent by the Ministry of the Interior on 17 September 1999 states that "as shown by the attached map (drawn up by the Directorate of Indigenous Affairs on the basis of data supplied by the Ministry of the Environment), the project's area of operations and the portion of land that has not officially been accorded (protected) status is neither regularly nor permanently occupied by indigenous communities".
43. On 21 September 1999, the Ministry of the Environment, by Decision No. 0788, granted Occidental an environmental licence for the Gibraltar 1 exploratory well. As regards indigenous communities that might be affected by the project, the licence specifies that "INCORA has not established any reserve in that particular zone".
44. The CUT alleges that on 6 October 1999, by Decision No. 0788, INCORA's Executive Board expanded the U'wa reserve from 61,156 to 220,275 hectares and designated it the "Single U'wa Reserve". (Endnote 12) According to the CUT, however, a large part of U'wa ancestral territory is not included in the boundaries set by the Decision.
45. The additional information supplied by the CUT on 27 June 2001 suggests that the development of the Gibraltar 1 project has directly affected that U'wa community, and that the community has suffered attacks by the Government's armed forces. It is alleged, inter alia, that "on 11 February 2000, at 8.15 a.m., mixed police and army forces arrived by air at Las Canoas, about four kilometres from Gibraltar (Norte de Santander), where about 450 women, children and old people of the U'wa indigenous community were concentrated. The police and army proceeded, without any warning, to use force (to remove) the communities, using heavy machinery and tear gas, (forcing them to jump) into the Cubujón river to escape their attackers. These attacks left three indigenous children dead and other children and women injured, while many others simply disappeared".
46. The CUT also maintains that as of 27 June 2001, the date of its communication, the Government had not complied with Resolution No. 056 of 6 August 1999, in that it had not acquired or purchased the land in question from the rural workers and settlers with a view to handing it over to the U'wa people. It is alleged that, as a result, the U'wa are in possession of only 61,000 of the 220,000 hectares to which Resolution No. 056 of 1999 refers.
B. The Government's observations
1. Decree No. 1320 of 1998
47. The Government states that it has been working since 1995 on a legal framework for prior consultation with indigenous and tribal peoples, including Act No. 21 of 1991 ratifying Convention No. 169. It points out that Decree No. 1320 of 1998 establishes provisions for the process of consultation with the indigenous and black communities prior to exploitation of renewable natural resources found within their territories, pursuant, inter alia, to section 15(2) of Act No. 21 of 1991. The wording of the section is identical to that of Article 15(2) of the Convention, which reads as follows:
In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.
48. The Government states that the Decree regulates various aspects of prior consultation, including the objectives of the consultation, working procedures, the organization of a formal meeting to determine whether the communities involved will take part in impact assessment and the framing of an environmental management plan, alternative courses to follow in the event that the communities concerned should refuse to be consulted or not attend the formal meeting, the obligation to inform the communities consulted of the decision to grant an environmental licence or permits, and the opportunity for indigenous and black communities to put forward suggestions regarding the process of prior consultation laid down in the Decree within a period of six months following its promulgation.
49. Regarding the allegation made by the CUT that the Government was under an obligation to consult the communities involved before enacting Decree No. 1320 of 1998, the Government quotes the Council of State's Ruling of 13 August 1998 (recorded in File No. 5091) on the request filed by certain organizations representing the Awa indigenous people to declare the Decree invalid. The Ruling states that:
It may be inferred from a reading of the allegedly violated rule that the disputed Decree provides for the implementation of suitable mechanisms or procedures for conducting consultation, but it cannot validly be argued that consultation is also mandatory in the establishment of such procedures.
50. With reference to the content of Decree No. 1320, the Government notes that, having examined the application filed by the organizations representing the Awa to declare the Decree invalid, the Administrative Court of the First Section of the Council of State deemed the Decree to be lawful, and - with the exception of the expression "and within a maximum of 24 hours" in section 13(d) - did not declare it null and void. (Endnote 13)
51. In its communication of 31 July 2001, the Government states that Decree No. 1320 is in force and is being applied in the country.
2. Work on the Troncal del Café highway and the indigenous community of Cristianía
52. As regards the case of the Troncal del Café highway, the Government states that Public Works Contract No. 0867 for the surfacing, straightening and widening of the highway was concluded on 30 December 1988, before Convention No. 169 entered into force in Colombia. The Government consequently maintains that no statutory provisions for prior consultation with ethnic minorities existed at the time, and that this particular component of the representation is therefore unfounded.
53. The Government further points out that since the Convention was not in force in 1991, the legal basis for considering the facts at issue lies in the constitutional rules in force at the time and in the court rulings, including tutela Ruling No. T-859 handed down by the Constitutional Court on 24 June 1992. It denies, moreover, that the Court's ruling was disregarded.
54. The Government indicates that the tutela proceedings instituted by the community were prompted by the events that occurred between Km168 and Km6+200 between June and November 1991. It affirms that the ruling handed down by the Constitutional Court on 24 June 1992 led to the suspension of all roadworks between Km1+150 and Km6+200. The Government further specifies that on 12 November 1992 the then environmental authority, i.e., the National Institute of Renewable National Resources and the Environment (INDERENA), conducted a field mission to determine the content and scope of the terms of reference for the environmental impact study ordered by the Constitutional Court. On 21 December 1992, the environmental authority submitted the study's terms of reference.
55. The Government reports that on 18 May 1994 agreement was reached between the community, the environmental and mining authorities and the project operators to work jointly on advancing the environmental impact study. The environmental authority submitted the study on 29 October 1994. The National Roads Institute (Invías) applied for an extension of the deadline for submission of the definitive study; the application was rejected and a penalty imposed. Once the study had been presented, the Administrative Court of Antioquia on 26 January 1995 overruled the suspension of works enforced by the Constitutional Court, and in addition dismissed the claim in respect of material damages allegedly sustained by the community.
56. The Government states that on 7 December 1995 INCORA, by Decision No. 59, officially granted the territories within the jurisdiction of the Municipality of Jardín (Department of Antioquia) legal status as reserves, thus demonstrating its compliance not only with the national and international standards prescribing respect for the cultural identity of ethnic minorities, but also with the ruling handed down by the Constitutional Court.
57. The Government further indicates that the (public works) contract was extended to 30 June 1995 and the following action was undertaken pursuant to the ruling of the Constitutional Court:
- construction of eight houses by the building consortium;
- construction of a viaduct;
- installation of filtering equipment and drainage systems.
58. The Government states that by 30 March 2000, the situation in the area at issue had fully stabilized and the living conditions of the communities established there were perfectly satisfactory. It therefore maintains that the representation should be dismissed.
59. The Government reports that the rules governing prior consultation are currently being put into effect and highlights the progress made in the field of road infrastructure. It indicates that Invías has so far conducted prior consultations with the following indigenous communities regarding 13 projects that involve roadworks: the Sikuanis, Piapocos, Camentsa, Ingas, Achaguas, Paeces, Anaconas and Pijaos, Cofanes and Embera Chamí, and the black communities of Villarica, Puerto Tejada, Santander de Quilichao, Cerritos, El Pailón, Triana and Buenaventura.
60. The Government details the various stages of consultation with the communities concerned; the process also includes project implementation, so that the communities are able to remain involved in the follow-up to and monitoring of agreements and the plan for social and environmental management.
3. Issuing of an environmental licence for Occidental to conduct petroleum exploration in U'wa territory
61. The Government states that on 16 October 1998 Occidental applied to the Ministry of the Environment for an environmental licence for the Gibraltar exploratory drilling project and the Gibraltar 1 exploratory well. According to the Government, Occidental's written application, based on the environmental impact study, states that "it has been proved beyond doubt that there are no indigenous or black communities present on the well site, in the area of operations of the well or within the area directly or indirectly affected by it".
62. Occidental's arguments notwithstanding, the Government observes that, pursuant to section 3 of Decree No. 1320 of 1998, the Ministry of the Environment asked the Ministry of the Interior to inform it whether there were any indigenous communities in the area covered by the Gibraltar project and to advise it whether prior consultation was being appropriately carried out. The Ministry of the Environment also asked INCORA to inform it whether there were any officially established indigenous territories in the area, in order to determine whether prior consultation was being appropriately conducted with the communities concerned.
63. The Government maintains that the Ministry of the Environment thus fulfilled its statutory obligations to provide information (substantiated by documents certified by the competent authorities) with regard to any indigenous communities that might be present and to ascertain whether prior consultation was being duly carried out. The Government further maintains that the Ministry of the Interior and INCORA informed the Ministry of the Environment of their findings, on the basis of which it was concluded that no indigenous communities were affected in the project area; that INCORA had not established any reserve on the Gibraltar exploratory drill site; and that, once the coordinates of the drill site had been adjusted to encompass (no more than) the project's direct area of operation and a portion of land without any official status, no indigenous communities were present there on a regular or permanent basis.
64. The Government adds that, in the course of the administrative processing of the environmental licence application, INCORA issued Decision No. 56 of 6 August 1999, expanding the reserve from 61,156 to 220,275 hectares and designating it the "Single U'wa Reserve".
65. The Government further states that, in view of the expansion of the reserve, the Ministry of the Environment renewed its request to the Ministry of the Interior to establish whether or not there were any indigenous communities in the project area. On the basis of the data in the ethnographic study (including data on social aspects that add to and modify those examined in Occidental's environmental impact study) and the certified documents of the Ministry of the Interior, the Ministry of the Environment was able to ascertain the following:
-The Single U'wa Reserve, defined by INCORA Decision No. 56 of 6 August 1999, does not include the Gibraltar exploratory drilling area, the boundaries of which are specified in section 2 of the Decision at issue in this representation.
-The boundaries of the Single U'wa Reserve have been respected, since the application for the environmental licence was amended to take account of the coordinates of the Gibraltar exploratory drilling area as recorded in Document No. 688 of 20 November 1998, established by the Ministry of the Environment's Subdirectorate for Environmental Licensing.
66. In view of the foregoing, the Government argues that the complainant cannot base its representation on the INCORA document of 22 December 1998, and specifically the paragraph stating that: "Pursuant to Act No. 160 of 1994 and Decree No. 2164 of 1995, this Institute is currently moving ahead with the procedures for the establishment of the Single U'wa Reserve, within the boundaries that will be defined according to whether part of the Gibraltar 1 exploration zone remains included". The Government quotes the following three reasons in support of its argument: first, the aforementioned document is not relevant, since the administrative decision expanding the Single U'wa Reserve had already been issued and the Ministry of the Environment took it into account in its Decision No. 788 of 1999; second, even if there was originally a risk of the community being affected, this has now been averted, since the applicant for the environmental licence has modified the project coordinates in compliance with the INCORA Decision expanding the reserve; and third, the site has been relocated, so that the Gibraltar project area of operations lies clearly outside the boundaries of the Single U'wa Reserve.
67. Lastly, the Government observes that, since the spheres of competence of the various bodies exercising administrative functions are clearly defined by the Colombian Constitution and Colombian law, the Ministry of the Environment is under an obligation to take account of, abide by and implement the decisions reached by the Ministry of the Interior in matters lying within the latter's purview. The Government accordingly states that the Ministry of the Environment satisfied the requirements under the relevant national legislation in granting the environmental licence.
III. The Committee's conclusions
68. The Committee notes the extensive and detailed information supplied in the present case both by the complainant and by the Government on the three issues covered by the representation. The Committee considers it appropriate to examine the different aspects of each issue in the order in which they appear in the representation.
1. Decree No. 1320 of 1998
69. The CUT alleges that the promulgation and content of Decree No. 1320, which "establishes provisions for the process of consultation with the indigenous and black communities prior to exploitation of renewable natural resources found within their territories", violates Articles 2(1), 2(2)(b), 4(1) and (2), 6, 7 and 15(1) of the Convention. Article 6 of the Convention, which establishes the obligation of States to undertake prior consultations with the peoples concerned, states that:
1. In applying the provisions of this Convention, governments shall:
(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may effect them directly;
(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;
(c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.
2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
70. The Committee considers that the concept of prior consultation established in Article 6 must be understood within the context of the general policy set out in Article 2(1) and (2)(b) of the Convention, according to which:
1. Governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity.
2. Such action shall include measures for: ...
(b) promoting the full realization of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions;
...
71. The Government does not dispute that the indigenous peoples concerned were not consulted on the Decree in question. The Committee notes that, when it issued the Decree, the Government did not even consult the very bodies which it had established to deal with indigenous issues, such as the Standing Committee for Coordination with Indigenous Peoples and Organizations and the General Directorate of Indigenous Affairs.
72. The Committee draws the Government's attention to paragraph (a) of Article 6 of the Convention to which reference has already been made. The Committee notes that the right of indigenous peoples to be consulted whenever consideration is given to legislative or administrative measures which may affect them directly, as well as the obligation of the Government to carry out prior consultation with the peoples affected, is derived directly from Convention No. 169, not from the recognition of that right by national legislation. Article 6, paragraph 1(a), of the Convention states that "In applying the provisions of this Convention, governments shall ... consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly." The Committee considers that Decree No. 1320 of 1998, the explicit purpose of which is to regulate "prior consultation with the indigenous and black communities before any exploitation of resources within their territory", constitutes a legislative measure that is likely to affect the communities in question directly. Article 6, paragraph 1(a), therefore clearly implies an obligation to consult the country's indigenous peoples before the adoption and promulgation of the Decree in question.
73. The Committee notes that, according to section 21 of the Decree: ... without prejudice to the applicability of the present Decree from the date of its promulgation onwards, the National Government shall, within six months of that date, sponsor participatory meetings with the indigenous and black communities in order to obtain from them any observations and corrections which might be introduced into the prior consultation processes established under the present Decree.
74. The Committee notes that, according to the additional information supplied by the CUT in its communication dated 27 June 2001, three meetings were held with representatives of indigenous and black organizations after Decree No. 1320 was promulgated. The Committee also notes that section 21 provides for "participation meetings" after the promulgation of the Decree, which could not replace the process of prior consultation in which the peoples affected could participate actively in the development of the consultation process. Given that Article 6 of the Convention implies the obligation of ratifying States to consult indigenous peoples before the adoption or promulgation of any legislative measure that may affect them directly, the Committee considers that issuing Decree No. 1320 without prior consultation was not compatible with the Convention.
75. The Committee notes that section 12 of the Decree provides for only one consultative meeting - even though for a given project or activity it may be necessary to consult a number of different black or indigenous communities - except in cases where this is not possible because of conflicts between the communities in question.
76. The Committee also notes that section 13 of the Decree provides for only one meeting during which "the project director shall give a presentation on the relevant study" (section 13(a)), following which "representatives of the indigenous and black communities shall be consulted" (section 13(b)). Section 13(c) states that "if there is agreement on the potential impact and on the measures proposed as part of the environmental management plan (...) the meeting shall be adjourned and the fact shall be noted expressly in the minutes". Where no such agreement is reached, "the competent environmental authority shall suspend the meeting on one occasion only" (section 13(d)). Once the meeting is resumed, if there is no agreement on the measures set out in the environmental management plan, "the meeting shall be declared closed, this fact being expressly noted in the minutes, and the competent environmental authority shall decide on the particular case in an official ruling granting or withholding an environmental licence" (section 13(e)). The Committee notes that the Decree apparently does not provide for any participation or consultation of the peoples concerned during the preparation of the environmental study and the formulation of the environmental management plan.
77. The Committee recalls that, during the discussion on the adoption of Article 6 of the Convention concerning prior consultation, a representative of the Secretary-General stated that, in drafting the text, the Office had not intended to suggest that the consultations would have to result in the obtaining of agreement or consent of those being consulted, but rather to express an objective for the consultations. (Endnote 14) Nevertheless, the Committee considers that the requirement for prior consultation must be viewed in the light of one of the fundamental principles of the Convention as expressed in Article 7, which states that:
1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.
...
3. Governments shall ensure that, whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these activities shall be considered as fundamental criteria for the implementation of these activities.
In addition, Article 15 provides that:
1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.
78. In the Committee's view, although Article 6 does not require that consensus be reached in the consultation process, it does envisage that the peoples concerned should have an opportunity to participate freely at all levels in the formulation, application and evaluation of measures and programmes that directly affect them. Moreover, in the Committee's opinion, Articles 2(1), 2(2)(b), 6, 7 and 15(2) require consultation of the peoples concerned before the finalization of any environmental study and environmental management plan, in stipulating that governments "shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands".
79. For the reasons given above, the Committee considers that the process of prior consultation, as provided for in Decree No. 1320, is not consistent with Articles 2, 6, 7 and 15 of the Convention. The adoption of rapid decisions should not be to the detriment of effective consultation for which sufficient time must be given to allow the country's indigenous peoples to engage their own decision-making processes and participate effectively in decisions taken in a manner consistent with their cultural and social traditions. Although the Committee does not claim that these traditions are the only ones that can serve as a basis for consultations in accordance with the Convention, it does consider that if they are not taken into consideration, it will be impossible to meet the fundamental requirements of prior consultation and participation.
2. Work on the Troncal del Café highway and the indigenous community of Cristianía
80. The Government states that the public works contract for the construction of the Troncal del Café highway was signed in December 1998, before Colombia ratified Convention No. 169. The Committee notes that the Convention was approved by Act No. 21 of 4 March 1991, ratified by Colombia on 7 August 1991 and came into force in that country on 7 August 1992. The Committee considers that the provisions of the Convention cannot be applied retroactively, particularly with regard to questions of procedure.
81. With regard to the demands for compensation, the Committee wishes to make it clear that it does not presume to express an opinion regarding particular land disputes under the Convention, in particular regarding the question of any possible causal link between damages suffered by the community and the highway project. The Committee considers that its fundamental task is rather to ensure that appropriate measures have been applied to resolve such disputes and that the principles of the Convention have been taken into account in dealing with the problems that affect the country's indigenous and tribal peoples.
82. The Committee notes that the Convention did not enter into force in Colombia until 7 August 1992, by which date the public works contract in question had already been signed and work on the highway had already begun. However, the Committee notes that according to Constitutional Court Ruling No. T-428 of 24 June 1992, an environmental impact study was already required under existing national legislation in 1988, the year in which the contract for widening the highway was concluded, although such a study was not undertaken before the work on the highway began. (Endnote 15) Furthermore, according to the Government, the contract in question was extended until 30 June 1996. Given that the work continued, the Committee considers that the Government had an obligation to consult the community affected by it from the date on which the Convention entered into force onwards, in particular with regard to the provisions of Article 7(1) and (2) of the Convention, in order to allow the community to participate in its own economic, social and cultural development. In this regard, the Committee notes that, while the project was approved before the Convention came into force in Colombia, the work was still in progress at that time. Consequently, from the time at which the Convention entered into force onwards, the Government had an obligation to consult the peoples concerned on the completion of the work. The Committee notes the Government's statements to the effect that in its current programmes, Invías not only consults the indigenous peoples at the start of a road project, but also involves them in the follow-up and monitoring of agreements and in the implementation of the socio-environmental management plan.
3. Issuing of an environmental licence for Occidental to conduct petroleum exploration in U'wa territory
83. The CUT alleges that the Colombian Government, through its Ministry of the Environment, granted an environmental licence to Occidental for petroleum exploration activities within the territory of the indigenous U'wa people without first consulting the people concerned.
84. The Government states that there was no prior consultation with the U'wa peoples before the environmental licence was issued because the Ministry of the Interior and the National Land Reform Institute (INCORA) certified that the project's area of operations would not affect indigenous peoples.
85. The Committee considers that the Government, through the Ministry of the Environment, was informed that the Gibraltar 1 exploratory well project could have an impact on the indigenous U'wa communities. The project in question is situated inside the Samoré block for which the first environmental licence, requested by Occidental in 1992, was granted. In the course of this first administrative procedure, the Ministry of the Environment acknowledged that the Samoré block included indigenous reserves and was situated within the ancestral lands of the U'wa people, and that the community in question should be consulted. Even if the Government extended the U'wa reserve and Occidental altered the coordinates of the Gibraltar 1 well shortly before the company was granted its second environmental licence, it is not disputed that the well in question is still located inside the Samoré block, where the existence of U'wa ancestral lands had already been acknowledged. The Committee notes that the map of the U'wa ancestral territory (Endnote 16) which was produced by the Universidad Javeriana, the Institute of Environmental Studies for Development, the Eastern U'wa Regional Organization and the U'wa Land Regulation Team in June 1996, as part of the U'wa Ethnic Development Project and the Socio-Economic Study of the U'wa Reserve, clearly shows that the Gibraltar 1 well is located in the middle of the U'wa ancestral lands.
86. The Committee notes that the Government has applied the criterion of the "regular and permanent presence of indigenous communities" in deciding whether the siting of an exploratory or operational project in a given area will affect the communities in question. In this regard, the Committee recalls that the Convention refers to the concept of "rights of ownership and possession (of the peoples concerned) over the lands which they traditionally occupy" (Article 14, paragraph 1), a concept that is not necessarily equivalent. Furthermore, the Convention does not cover merely the areas occupied by indigenous peoples, but also "the process of development as it affects their lives ... and the lands that they occupy or otherwise use" (Article 7, paragraph 1). The existence of an exploratory or operational project immediately adjacent to land that has been officially recognized as a reserve of the peoples concerned clearly falls within the scope of the Convention.
87. The Committee notes that, as the Ministry of the Environment acknowledged in its Technical Report No. 30599, the establishment of the exploratory well "requires that an extensive area be made available for the infrastructure and facilities needed for the operations". (Endnote 17) Given that the Gibraltar 1 well is situated within an area that includes ancestral territories of the U'wa and in any case only about 1.7 kilometres from the boundaries of the new U'wa Single Reserve, (Endnote 18) it is clear to the Committee that the area of operations of the "Gibraltar 1 exploratory well project" would have an impact on the communities in that area, including the U'wa communities. Therefore, under the terms of Article 15(2) of the Convention, the Government was required to consult the U'wa with a view to determining whether their interests would be harmed, before authorizing the exploratory operations.
88. As regards the prior consultation process with the U'wa, the Committee notes that, during the course of the administrative process in connection with the first environmental licence requested by Occidental in 1992, a meeting took place with a number of U'wa representatives on 10 and 11 January 1995 and 21 February 1995 in the municipality of Arauca. The Committee notes that at the meeting in question, one of the Government's representatives stated that the purpose of the consultation was not "to say yes or no to a project, but to enable the community to understand how it would be affected by the work that would be taking place in its reserve, to examine the likely sociocultural impact of the project and appropriate solutions, as well as the benefits that should accrue to the community". (Endnote 19)
89. The Committee emphasizes the provision of Article 6(2) of the Convention, according to which:
The consultations carried out in application of this Convention shall be undertaken in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
90. The Committee considers that the concept of consultation with the indigenous communities that might be affected with a view to exploiting natural resources must encompass genuine dialogue between the parties, involving communication and understanding, mutual respect and good faith, and the sincere desire to reach a consensus. A meeting conducted merely for information purposes cannot be considered as being consistent with the terms of the Convention. Furthermore, according to Article 6, the consultation must be "prior" consultation, which implies that the communities affected are involved as early on as possible in the process, including in environmental impact studies. Lastly, the Committee wishes to emphasize that, as in the present case, meetings or consultations conducted after an environmental licence has been granted do not meet the requirements of Articles 6 and 15(2) of the Convention. For these reasons, the Committee considers that the Government violated the Articles in question by issuing the environmental licences for which Occidental applied in 1995 and 1999 (after the Convention had entered into force in Colombia) without conducting the due process of prior consultation with the peoples affected.
91. According to Article 15(2) of the Convention, wherever exploration or exploitation activities are undertaken on their lands: The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.
The Committee therefore considers that, if the Gibraltar 1 exploratory well is situated, as the survey by the Universidad Javeriana indicated, within lands traditionally occupied by the U'wa or at least within a distance of 1.7 km from those lands, the Government must consult the peoples affected in order to determine the applicability of Article 15(2) and ensure that the peoples affected by the exploratory activities can receive compensation for any damages suffered as a result of them, and to determine to what extent those peoples should participate in the benefits of such exploration or exploitation activities.
92. The Committee wishes to express its concern at the information received from the CUT and other reliable sources suggesting the repeated use of force against the U'wa community by government soldiers and police.
93. It is the Committee's understanding that Occidental has not found any petroleum in the exploration zone and that is it currently dismantling the Gibraltar 1 well. However, the Committee is fully aware that other exploratory or operational oil drilling projects may be established in the U'wa ancestral lands in the future. The Committee therefore wishes to emphasize the importance which the Committee of Experts continues to place on the full implementation of the provisions of the Convention as a fundamental element in safeguarding the interest of the indigenous people affected by such activities.
IV. The Committee's recommendations
94. The Committee recommends to the Governing Body that it approve this report, taking into account the conclusions submitted in paragraphs 66-92 of the report, and that:
(a) it request the Government to amend Decree No. 1320 of 1998 to bring it into conformity with the Convention, in consultation with, and with the active participation of, the representatives of the indigenous peoples of Colombia, in accordance with the Convention;
(b) it request the Government to apply in full Articles 6 and 15 of the Convention, and consider establishing consultations in every specific case with the indigenous peoples concerned whenever legislative or administrative measures that may affect them directly are considered, or before adopting or authorizing any programme of exploration or exploitation of resources located within their lands;
(c) it suggest to the Government that, with regard to the petroleum exploration and extraction activities of Occidental, it involve the people concerned in establishing and maintaining a constructive dialogue in the adoption of any decisions;
(d) it request the Government to continue providing information to the Committee of Experts on the Application of Conventions and Recommendations, through the reports which it is required to present under article 22 of the Constitution of the ILO in respect of this Convention, on any developments regarding the three basic issues on which the CUT representation is based, in particular on:
(i) any measure taken to amend Decree No. 1320 of 1998 in accordance with Article 6 of the Convention, and any measure that has been taken or may be taken to ensure the fullest and freest possible participation of representatives of the peoples concerned in the reform process;
(ii) any measure taken to remedy the situation of the Embera Chamí people in the Cristianía Reserve;
(iii) the measures that are taken or may be taken to remedy the situation of the U'wa, including measures to apply resolution No. 056 of 1999 concerning the purchase of land, as well as a new examination of the impact that exploratory activities have had and may have on them and of the ways in which the U'wa may receive fair compensation for any damage or loss which they may have suffered as a result of these activities, in accordance with the provisions of Article 15(2);
(iv) the measures taken or contemplated to remedy the situations that have given rise to the representation, taking into consideration the need to establish an effective mechanism for prior consultation with the indigenous and tribal peoples, as required under Article 6, as well as the protection of its integrity, as required under Article 2;
(v) the measures taken or contemplated to investigate the allegations reflected in paragraph 45 of this report, with a view to ensuring that justice is done and compensation provided for any damages caused, and to ensure that force is not used against the U'wa people in future; (e) it declare closed the procedure initiated before the Governing Body when the representation was submitted.
Geneva, 14 November 2001.
(Signed) L. S. Sosa Márquez, Francisco Díaz Garaycoa, Federico Ramírez León.
Endnote 1
Constitutional Court Ruling No. T-428 of 24 June 1992.
Endnote 2
Constitutional Court Ruling No. SU-039/97 of 3 February 1997, p. 41.
Endnote 3
Council of State Ruling of 4 March 1997, File No. S-673, p. 4.
Endnote 4
ibid., p. 4.
Endnote 5
Constitutional Court Ruling SU-039/97, p. 44.
Endnote 6
ibid., p. 44.
Endnote 7
ibid., p. 45.
Endnote 8
According to the CUT, this communication is recorded in the Ministry's 2000 file containing the documents pertaining to the process that led to the granting of the licence.
Endnote 9
Technical Report No. 30599, p. 4.
Endnote 10
ibid., p. 5.
Endnote 11
ibid., p. 25.
Endnote 12
Here there is a discrepancy in the facts, the Government maintaining that INCORA expanded the reserve by Decision No. 56 of 6 August 1999.
Endnote 13
Section 13(d), which regulates the conduct of the meeting at which the peoples concerned are to be consulted, stipulates the following: "If agreement cannot be reached on the measures proposed under the environmental management plan and any other relevant measures, the competent environmental authority shall suspend the meeting, once only and for a maximum of 24 hours, so that the parties can assess the proposals (...)".
Endnote 14
See the Report of the Committee on the Indigenous and Tribal Populations Convention, 1957 (No. 107), Record of Proceedings, International Labour Conference, 76th Session, Geneva, 1989, para. 74, pp. 25-25/12.
Endnote 15
Sections 27 and 28 of Decree No. 2811 of 1974 (National Natural Resources Code); see Constitutional Court Ruling No. T-428, p. 488.
Endnote 16
Attached to the CUT communication of 27 June 2001.
Endnote 17
Technical Report No. 30599, p. 15.
Endnote 18
See the map attached to the Government's communication of 31 July 2001.
Endnote 19
Council of State Ruling, pp. 21 and 49.