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

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Colombia (Ratification: 1991)

The Committee notes the joint observations of the International Organisation of Employers (IOE) and the National Employers Association of Colombia (ANDI) received on 31 August 2018, which highlight and welcome the Government’s efforts towards the implementation of the Convention. The Committee also notes the observations of the IOE, received on 2 September 2019.

The Committee also notes the observations of the Workers’ Trade Union Confederation of the Oil Industry (USO) received on 1 September 2017; the joint observations of the Single Confederation of Workers of Colombia (CUT), the Colombian Federation of Education Workers (FECODE) and the Teachers’ Association of Cundinamarca (ADEC) received on 30 May 2018; and the joint observations of the Confederation of Workers of Colombia (CTC) and the CUT received on 1 September 2018. The Committee notes the Government’s reply to the joint observations of the CTC and CUT, and to the observations of the ANDI and IOE, received on 23 November 2018, and to the joint observations of the CUT, FECODE and ADEC, received on 20 May 2019.

The Committee also notes the observations of the General Confederation of Workers of Peru (CGTP) received on 23 March 2017, which include the report of the Coordinating Body of Indigenous Organizations in the Amazon Basin (COICA) on the application of the Convention in various countries.

Articles 2, 3 and 33 of the Convention. Restoration of peace. Human rights. Reparations. The Committee notes the Final Agreement for the end of the conflict and the building of stable and lasting peace signed by the Government and the Revolutionary Armed Forces of Colombia on 24 November 2016, and the corresponding Framework Plan for its implementation. The Committee welcomes the inclusion, in the Agreement, of a chapter on ethnic groups, which establishes that the interpretation and implementation of the Agreement shall take into account the principles of participation and consultation, identity and cultural integrity and the rights of ethnic peoples over their land. The Committee notes that the Framework Plan for the implementation of the Agreement contains specific targets and indicators for indigenous peoples, persons of African descent, and Raizal, Palenquero and Roma peoples, which were determined in consultation with the Government and the special high-level body for ethnic peoples. The targets include the delineation and protection of collective lands, the participation of the peoples concerned in the comprehensive rural reform, and the promotion of the participation and leadership of indigenous and Roma women and women of African descent.

The Committee notes that the Unit for comprehensive victim support and reparation is the entity responsible for registering individual or collective victims, and in implementing support, assistance and reparation measures. The Unit houses the Ethnic Affairs Directorate, whose function is to coordinate the comprehensive support and reparation actions for indigenous peoples and communities, the Roma people and the Black, Afro-Colombian, Raizal and Palenquero communities. The Government indicates that any person or authorized spokespersons of the communities can report violations of their rights in the context of the armed conflict to the offices of the State Prosecutor, following which the Unit reviews these reports in order to determine whether the victims will be registered. The Government adds that collective reparation plans incorporate the stages of identification, registration, enlistment and assessment of the damage, drawing up the reparations plan, implementation and follow-up. According to information from the Unit for comprehensive victim support and reparation, the number of collective victims from ethnic groups as of February 2018 was 390; while in October 2019 there were 227,686 individual victims from indigenous peoples, 792,540 identified as Afro-Colombian, 19,317 as Roma, 10,048 as Raizal and 2,731 as Palenquero people. The Committee notes the Government’s indication that the Committee for follow-up and monitoring the implementation of Decree Laws Nos 4633, 4634 and 4635 of 2011 on comprehensive reparation measures and restitution of territorial rights of collective victims belonging to indigenous peoples, Roma or Gypsy peoples, and the Black, Afro-Colombian, Raizal and Palanquero communities, respectively, set out, in its five reports submitted to Congress, its concern at the significant delay in the implementation of collective reparations for ethnic groups. In this regard, the Committee notes that, in their joint observations, the CUT and the CTC also refer to the shortcomings in the implementation of collective reparations mechanisms for indigenous communities.

In its previous comments, the Committee noted the ethnic safeguard plans for the indigenous peoples who have faced threats to their life and culture owing to the armed conflict, which had been issued by the Constitutional Court in its ruling No. 004 of 2009. The Committee requested the Government to provide information on the implementation and impact of those plans. In this respect, the Government reports that in 2017 there were 39 ethnic safeguard plans, of which 78 per cent have passed the self-assessment stage with the peoples concerned, 62 per cent have passed the concertation stage and 46 per cent are in the implementation stage.

The Committee notes that, in its 2019 report on the situation of human rights in Colombia, the United Nations High Commissioner for Human Rights noted with concern the high number of killings of human rights defenders of indigenous and Afro-Colombian persons primarily in Antioquia, Cauca and Norte de Santander (A/HRC/40/3/Add. 3 of 4 February 2019, paragraphs 15–17). The Committee also observes that the 2018 report of the State Prosecutor, entitled “Systemic violence against territorial rights defenders in Colombia”, analyses the interplay of violence against land rights defenders and their actions to defend their land rights. The report indicates that between January 2016 and March 2017, 156 murders of social campaigners, community leaders and human rights defenders were registered, at least 25 per cent of whom were leaders of indigenous peoples and communities. The Committee notes that, in its observations, USO refers in general to threats and acts of violence faced by the indigenous communities (Chidima Tolo and Pescadito) in the northern part of the Chocó region owing to the presence and actions of armed groups on their lands. It also refers to limitations to their right to movement inside and outside of their territory, and to the existence of anti-personnel mines and explosives, which amounts to a high-risk situation for members of the communities.

The Committee encourages the Government to continue to take actions for the restoration of peace that may contribute to the cessation of violence, the inclusion of members of the peoples covered by the Convention in the economic and social development of the country, and the full exercise of their human and collective rights. The Committee urges the Government to take appropriate measures to investigate the causes, establish responsibility and punish the perpetrators and instigators of the murders of indigenous rights defenders and acts of violence, and to guarantee the physical integrity and access to justice of the peoples covered by the Convention who continue to be victims of the conflict.

The Committee recalls that the Convention is an instrument that seeks to contribute to sustainable and inclusive peace and requests the Government to provide information on the manner in which the peoples covered by the Convention participate in the implementation of the Peace Agreement in all aspects that concern them. The Committee also requests the Government to intensify its efforts to ensure the implementation, without delay, of the collective reparations plans and ethnic safeguard plans, and provide detailed and updated information on progress in this regard, indicating the manner in which the peoples covered by the Convention have participated in the evaluation of the implementation and sustainability of the measures taken to this end.

Articles 6, 7 and 15. Consultation. Development projects. In its previous observation, the Committee noted the Presidential Directive No. 10 of 2013, containing the Guide on holding prior consultations with ethnic communities; as well as the document approved in 2013 by the National Economic and Social Policy Council, namely the Conpes Document No. 3762, which sets out the main features for the development of projects of national and strategic interest and, according to the Government, seeks to improve the exercise of the right to prior consultation. The Committee requested the Government to report on the functioning of those mechanisms and on the manner in which the participation of ethnic peoples covered by the Convention is ensured in the benefits accruing from such activities. The Government indicates that, between 2013 and 2018, 6,243 prior consultation processes were carried out, of which 18 per cent regarded activities in the hydrocarbons sector, 10 per cent in the environmental sector, 9 per cent in infrastructure and telecommunications, 7 per cent in mining and 6 per cent in electricity. The Government indicates that the Directorate for Prior Consultation of the Ministry of the Interior takes into consideration the principles developed by the Constitutional Court in its decisions regarding consultation, particularly as they relate to mining or port projects and infrastructure works, and provides examples of the way in which these principles of jurisprudence have been applied in prior consultations held with the different communities.

With respect to the identification of the communities to be consulted, the Government reports that the process to certify the presence or otherwise of ethnic communities in the area that will be affected by a project, works or activities is initiated by an application from the persons concerned, which is examined by the Directorate for Prior Consultation of the Ministry of the Interior to determine whether the information provided by the applicant is sufficient to continue with the certification process. This information is compared with the information contained in the cartographic databases of indigenous reservations and community councils; the databases of the Directorate for Indigenous Affairs and Roma Communities and the Directorate for Black, Raizal and Palenquero communities; the database for prior consultation; and the information on applications for collective land titling by indigenous and Black communities from the National Land Agency. The Government specifies that, where there is uncertainty in determining the presence of an ethnic community within the area of interest of the projects, works or activities, a visit is planned to verify the situation.

The Committee notes that, in its observations, the IOE indicates that the lack of clear rules for the development of the processes of prior consultation is a concern for the ANDI. The ANDI considers that despite the extensive jurisprudence of the Constitutional Court on the matter, there is no legislation that establishes basic guidelines in relation to the stages of prior consultation process, its duration, costs rights and obligations of the parties involved in the process and a closing mechanism. Therefore, the ANDI, the lack of clear rules in prior consultation processes becomes the main difficulty to advance investments in the country.

The Committee notes all of this information and, with reference to its previous observation, once again requests the Government to indicate whether Presidential Directive No. 10 and the Conpes Document No. 3762 are still applied and, if so, to provide information in this respect. The Committee requests the Government to continue providing information on the progress towards the adoption of regulations for prior consultation relating to projects undertaken on land belonging to peoples covered by the Convention, with an indication of the measures taken to ensure that full and informed consultations are held with the peoples concerned. It also requests the Government to indicate which mechanisms are in place to ensure the participation of those peoples in the benefits accruing from such activities.

The Committee also notes that ruling No. SU 123 de 2018 of the Constitutional Court, which compiles the Court’s jurisprudence on prior consultation, states that prior consultation is imperative “when there is reasonable evidence that a measure is likely to directly affect an indigenous people or a community of African descent”. The Committee recalls that Article 15(2) of the Convention sets out that the aim of the consultation is to ascertain whether and to what degree the interests of the peoples concerned would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands. The Convention does not set forth evidence of a possible impact as a condition for consultation. In this connection, the Committee requests the Government to adopt measures to ensure that, in practice, the scope of the obligation of consultation is not reduced, by requiring evidence that the measure is likely to affect the indigenous peoples. Considering that Article 15(2) establishes the obligation to ascertain whether and to what degree the interest of these peoples would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands, the Committee trusts that the judicial interpretation be read and applied in this sense.

Fees for holding prior consultation. The Committee notes that, in its ruling No. SU123 de 2018, the Constitutional Court ordered Congress and the Government to take measures to establish a robust institutional framework for the issuance of certificates regarding the presence of ethnic groups in areas affected by projects, works and activities that balances between the right to consultation of the ethnic groups with the legal certainty of the investors. It notes in this respect that section 161 of Act No. 1955 of 2019 establishes the fee for holding prior consultation, which must be paid to the Ministry of the Interior by the party organizing the prior consultation and must cover the costs of the fees of the officials who devise the methodology, preconsultation and consultation, including travel expenses. The Act also provides for related costs and access to information on the presence of communities. The Committee recalls that in its general observation of 2018 it highlighted that it is incumbent upon governments to establish appropriate mechanisms for consultation at the national level and that public authorities must undertake consultations, without interference, in a manner appropriate to the circumstances. The Committee requests the Government to provide information and examples of the application in practice of the fees for holding prior consultation, with an indication of whether this has affected the effective implementation of consultation processes with the peoples covered by the Convention.