Solicitud directa (CEACR) - Adopción: 2003, Publicación: 92ª reunión CIT (2004)

Convenio sobre pueblos indígenas y tribales, 1989 (núm. 169) - Ecuador (Ratificación : 1998)

1. The Committee notes the information provided by the Government in its report and the attached texts, which include statistical information.

2. Article 2 of the Convention. The Committee would be grateful if the Government would provide information in its next report on the continuation of the Project for the Development of Indigenous and Black Peoples in Ecuador (PRODEPINE).

3.  Article 4. In the context of its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Committee has been indicating for years that despite the efforts that are being made to eliminate the last vestiges of racial discrimination, it still exists in practice. Some 80 per cent of the indigenous population is below the vulnerability threshold and is not able to meet basic needs such as food, education and housing. The Committee hopes that the Government will provide information on the national policies adopted for this purpose and on the action that is being taken or is planned to eliminate discrimination in employment and occupation against indigenous peoples and the Afro-Ecuadorian population.

4. The Committee notes the information provided by the Government in its report indicating that the commission has not yet been established for the implementation of the Operational Action Plan, 1999-2003, on the rights of indigenous nationalities and peoples in Ecuador. The Committee trusts that the Government will provide information in its next report on positive developments in this respect.

5. Articles 5 and 7. The Committee notes the information provided by the Government in its report indicating that indigenous communities are undertaking action on their own initiative for the social development of communities and the self-determination of peoples. It also notes that the Government is not participating in these processes and confines itself to ensuring self-determination and respect for the customs, beliefs and other ancestral characteristics of these communities. The Committee recalls that, in accordance with the Convention, the Government is under the obligation to establish means so that indigenous and Afro-Ecuadorian communities can develop their own institutions and initiatives. With regard to this obligation, the Committee notes the Government’s indication in its report that regulations have not yet been issued under article 84(13) of the Constitution, under which indigenous peoples - including black or Afro-Ecuadorian peoples in accordance with article 85 - have the right to determine priorities in plans and projects for the development and improvement of their economic and social conditions, and to appropriate financing from the State. The Committee trusts that the Government will be able to provide information in its next report on the progress achieved in this important area.

6. Article 6. The Committee notes the information provided by the Government in its report indicating that the Council for the Development of the Nationalities and Peoples of Ecuador (CODENPE) intervenes by holding consultations with the leaders of the various indigenous communities. With regard to the request for clarification made by the Government to the Committee on the possibility of sending the report to other organizations which are not workers’ and employers’ organizations, the Committee recalls that in view of the special nature of this Convention, in Part VIII of the report form approved by the Governing Body, it is proposed that governments may find it helpful to consult organizations of indigenous or tribal peoples in the country through their traditional institutions, not only to give effect to the Convention, but also in preparing reports on its application. This measure is not a requirement of the Convention. The Committee notes with interest the Government’s indication that it will send a copy of the present report to the CODENPE so that this Council can in turn distribute it to the indigenous organizations that it considers appropriate, and the Committee trusts that this practice will continue in future. The Committee hopes that the Government will also indicate whether it has received comments from these organizations on its reports, and on any action taken as a result.

7. Article 7. With reference to its previous comments, the Committee notes the Government’s indication in its report that there has been no progress in carrying out activities under the Operational Action Plan, 1999-2003. Nevertheless, the Committee trusts that the Government will indicate whether any of the components of the plan have been implemented, such as the multiplication and strengthening of autonomous political and administrative units, the formulation of a basic law on indigenous peoples and nationalities and the law on the demarcation of indigenous lands. The Committee also hopes that the Government will provide information on the manner in which the PRODEPINE and other projects take into account and apply the criteria set forth in paragraphs (2) and (3) of this Article of the Convention, where appropriate, indicating the manner in which indigenous and Afro-Ecuadorian peoples have been associated with the measures to protect and preserve the environment in the lands that they inhabit.

8. Articles 8 to 10. In its previous comments, the Committee noted that, by virtue of article 191 of the Constitution, the authorities of indigenous peoples shall exercise functions relating to the administration of justice, applying their own standards and procedures for the settlement of internal disputes in accordance with their customs and customary laws, provided that they are not contrary to the Constitution and the laws, and that the law shall make these functions compatible with those of the national judicial system. The Committee notes that no progress has yet been made in the implementation of this constitutional provision and that the Code of Minors has been replaced by the Code of Children and Young Persons, section 310 of which provides that the conviction and application of socio-educational measures to young persons belonging to indigenous communities for violations committed in their communities shall be in accordance with section 264 respecting protective judicial measures. The Committee trusts that the Government will provide information in its next report on any progress made in the implementation in practice of this constitutional provision.

9. Article 14. The Committee notes that the Government has not provided information in its report on the total area of lands for which title was adjudicated by the end of the period covered by the report and it trusts that the Government will be in a position to do so in its next report. It notes that the procedure is administered by the National Agrarian Development Institute (INDA) and hopes that it will be possible to provide information on the total area of lands which are demarcated and for which title has been adjudicated, and those for which this has not yet been done.

10. The Committee requests the Government to continue providing information in future reports on cases in which, under the terms of article 84(2) of the Constitution, the State declares community lands of indigenous or Afro-Ecuadorian peoples to be of public utility. It also requests information on the procedures and manner in which the views of the people affected are sought and taken into account.

11. The Committee notes the Government’s indication in its report that it does not have in its possession the communication of the Ecuadorian Central Organization of Class Organizations (CEDOC) alleging that the provisions of the Rural Communities Act are incompatible with other national legislation. The Committee informs the Government that the Office sent this communication to it on 14 November 1994. The Committee will once again send this communication and trusts that the Government will provide its comments in its next report.

12. Articles 15 and 16. The Committee reiterates its previous request to the Government to provide information on the manner in which the rights set forth in article 84(4) and (5) of the Constitution are exercised in practice relating to the participation of indigenous peoples in the use, exploitation, management and conservation of renewable natural resources situated on their lands, as well as on the consultation of these peoples concerning plans and programmes of exploration and exploitation of non-renewable resources which may affect their environment and culture. The Committee notes the indication in the report that this information is not available and hopes that it will be possible to provide it in the near future. The Committee is particularly interested in the application of these provisions in relation to the indigenous communities residing in the Yasuní National Park and in the lands assigned to the Huaoraní people in 1990.

13. The Committee requests the Government to provide information on the effect is given in practice to Executive Decrees Nos. 551 and 552 of 29 January 1999, declaring the area known as Cubayeno-Imuya an untouchable conservation area prohibited for any type of extractive activity, even though the Imuya oil exploration zone and the Zabalo I and Siona oil wells are located in this area. Please also report any complaints lodged concerning violations of the above provisions. The Committee reiterates its previous request to the Government to indicate in its next report whether the above Decrees have benefited the Cofanes, Siona and Secoya peoples.

14. Reiterating its previous request, the Committee asks the Government to provide information on any oil exploitation activities in the lands of the Sarayaku community and on the manner in which in such cases Articles 14 and 15 of the Convention are applied, in the light of the provisions of Articles 6 and 7. In this respect, the Committee notes the existence of an application made in November 2002 by the Governing Council of the Kichwa de Sarayaku "Tayjasaruta" people and other communities in the area to the Ecuadorian authorities rejecting the opening of oil wells in their lands and which also gave rise to a recommendation in May 2003 by the Inter-American Commission on Human Rights to the Government of Ecuador.

15. The Committee requests the Government to provide information in its next report on a claim filed with the High Court of Justice of the city of Nueva Loja in relation to severe pollution caused by the oil extraction activities of the Texaco company in the north-east of the provinces of Sucumbíos and Orellana causing cancer, the failure of pregnancies and respiratory problems in the members of the local communities.

16. Article 17. The Committee notes the information provided by the Government indicating that special legislation for the transmission of land rights for indigenous persons was not adopted. The Committee hopes that the Government will make efforts in the near future to give effect to paragraph 1 of this Article of the Convention.

17. Article 18. The Committee notes the information provided by the Government in its report that the communities themselves take responsibility for preventing the intrusion of unauthorized persons in their land. The Committee reminds the Government that, under the terms of this Article, the Government is under the obligation to take measures to prevent such offences. The Committee requests the Government to keep it informed of the action taken against intrusions on the lands that are owned or used by indigenous communities during the period covered by the report and, where appropriate, any related rulings and sanctions.

18. Article 19. In its previous comment, the Committee noted with interest the Agrarian Development Act which provides for two members of the INDA to be representatives of national organizations of indigenous persons, montubios, Afro-Ecuadorian persons and persons living in rural areas in general; the adjudication of lands to the peoples concerned; and the training of indigenous persons and the promotion of ancestral techniques to be applied in general in the various agrarian programmes. The Committee notes the Government’s reply in its report that it does not yet have information in reply to the Committee’s previous request concerning the various agrarian programmes existing in the country. The Committee hopes that it will provide this information with its next report.

19. Article 20, paragraph 3(a), (b) and (c). The Committee notes the Government’s reply in its report that it does not yet have detailed information on the situations covered by these provisions of the Convention, nor statistical data on the internal migration of indigenous persons. The Committee requests the Government to take the necessary measures so that it can provide information in its next report on the application of the above provisions, including statistics where available, as well as on the effect given to point 15(1) of the Operational Plan of Action, 1999-2003, on the establishment of a centre to receive and guide indigenous migrants in the major cities which, among other functions, would warn them of employment risks and provide information on employment, social security, housing and health.

20. The Committee notes that a national consultation with indigenous persons was held in June 2002 to determine the types of work that should be considered hazardous. The Committee requests the Government to provide information in its next report on the outcome of this consultation, and on the activities undertaken to raise the awareness of labour inspectors concerning the special vulnerability of indigenous and Afro-Ecuadorian peoples and the necessity to afford protection for the rights set forth in these provisions of the Convention.

21. Articles 21 to 23. The Committee notes the information provided by the Government indicating that between January 2000 and June 2003 training was provided to 50,035 persons in the urban marginal population and from rural areas through the National People’s Training Plan. It also notes that very interesting experiments have been carried out in eastern indigenous communities in relation to training by the Ecuadorian Vocational Training Service (SECAP) in handicrafts, agrarian activities and other fields characteristic of these communities. The Committee requests the Government to provide more detailed information on this subject, with an indication of the plans and programmes that are currently being carried out and the indigenous communities covered by them. Please also indicate whether consultations were held with representatives of indigenous communities in the formulation and implementation of these plans and programmes.

22. Article 24. The Committee notes the information provided by the Government on the conditions for access to the rural social security scheme, as well as the information attached on the scheme. It hopes that the Government will be in a position to indicate in its next report the percentage of indigenous persons currently covered by the scheme.

23. Article 25. With reference to its previous request, the Committee hopes that the Government will be in a position to provide detailed information in its next report on the number of health centres existing in regions inhabited by indigenous peoples, the number of medical, paramedical and nursing personnel and any information that would make it possible to gain a better idea of the manner in which this Article is applied.

24. Articles 26 to 29. With reference to its previous request, the Committee hopes that the Government will be in a position to provide detailed information in its next report by region and by people on the literacy rate by age and the levels achieved by the various indigenous peoples and the Afro-Ecuadorian population, as well as the same information for the non-indigenous population.

25. Article 32. Reiterating an earlier request, the Committee would be grateful if the Government would provide information on the measures adopted or envisaged in the economic, social, cultural, spiritual and environmental fields in the context of the Frontier Development Agreement concluded between Ecuador and Peru in 1999, as well as on any other agreement relating to indigenous peoples which may have been concluded with other neighbouring countries.

26. Part IV of the report form. The Committee trusts that the Government will be in a position to indicate in its next report whether the ordinary courts or other tribunals have handed down rulings on matters of principle relating to the application of the Convention. If so, please provide copies of these rulings.