Demande directe (CEACR) - adoptée 2000, publiée 89ème session CIT (2001)

Convention (n° 169) relative aux peuples indigènes et tribaux, 1989 - Colombie (Ratification: 1991)

1.  Article 1 of the Convention.  The Committee notes that, according to the Government, the Convention applies to 82 peoples which are present in the country. The Government states that the indigenous population in the national territory numbers 621,186 inhabitants.

2.  Article 2.  In its report, the Government indicates that the development, implementation and monitoring of programmes for indigenous peoples is the responsibility of the various ministries and the bodies attached to them. The Committee notes the information provided by the Government concerning the various participation and dialogue mechanisms established between the Government and indigenous peoples, including the National Commission on Indigenous Lands, the Permanent Dialogue Council with Indigenous Peoples and the National Human Rights Commission for Indigenous Peoples. The Committee requests the Government to indicate the proportion of representatives of indigenous peoples on these bodies.

3.  Article 3.  The Government indicates that Decree No. 1396 of 1996 established the National Human Rights Commission for Indigenous Peoples. The above Commission handles and evaluates complaints submitted concerning alleged violations of human rights affecting indigenous communities or their members. However, the Committee notes that the report also states that the above Commission does not currently have the authority to investigate cases. The Committee therefore requests the Government to indicate the competence and functions of the above Commission and the authority conferred upon it.

4.  Article 5.  With reference to its previous comments on indigenous communities living in resguardos in remote areas and facing difficulties in gaining access to goods and services, the Committee notes that, according to the Government, the indigenous communities which have legally established their resguardos have received 1,433,769 million pesos since 1995 in accordance with Act No. 60 of 1993 and Regulatory Decree No. 1386 of 1994. Noting that these resources have to be invested in social sectors, such as education, health, drinking water and basic sanitation, the Committee notes that the funds received by the indigenous communities have been used on projects submitted by the indigenous communities to the relevant municipal authorities. It requests the Government to provide practical examples of the projects undertaken with the above funding and on the practical impact of these measures on the living conditions of these communities.

5.  Article 6.  With regard to the policy concerning prior consultation with indigenous communities, the Committee notes that, according to the Government, during the period under review, the General Directorate of Indigenous Affairs (DGAI) participated in 50 consultation processes and followed up the completed consultations. During this period, 163 certifications were issued concerning the existence of indigenous communities in areas affected by public works and other projects. The Government emphasizes the importance of the preparation of the environmental management plan prepared jointly with the indigenous communities concerned and the enterprise executing the project. The Committee requests the Government to indicate the outcome of the consultations in which the DGAI has participated and to provide practical examples of the participation of indigenous communities in environmental management plans.

6.  Article 7.  The Committee notes that, according to the report, the National Recovery Plan (PNR) is no longer in existence. Recalling that the National Council on Indigenous Policy (CONAPI) is the focal point for defining development priorities and devising a programme of action for indigenous peoples, it once again requests the Government to provide information on the extent to which in practice the indigenous communities participate in the formulation, implementation and evaluation of plans and programmes which may affect them directly.

7.  The Committee once again recalls its request for information on the application of the decisions of the Constitutional Court on the compensation granted to indigenous communities affected by the damage caused by mining activities and the suspension of work on the extension of a highway. The Committee notes the information provided by the Government on the construction of a stretch of the Andes-Jardín highway, a project which affected the Cristianía indigenous community and which lacked the required environmental impact study. According to the Government, the environmental impact study was completed and the work on the road carried out within the parameters of the study in compliance with ruling T-428 of the Constitutional Court. The Committee once again requests the Government to provide information on the rulings of the Constitutional Court concerning compensation to indigenous communities affected by the damage caused by the mining activities.

8.  The Committee noted previously that the Constitutional Court, in its ruling on case No. T-12559, called for the establishment of a permanent oversight committee which included the representatives of the affected communities with a view to the preparation of an environmental management plan based on studies and analysis. In the absence of any reply by the Government on this point, the Committee once again requests the Government to provide detailed information in its next report on the establishment and activities of the permanent oversight committee.

9.  Article 8.  The Committee notes that draft legislation has been prepared with a view to coordinating the ordinary legal system with the special indigenous legal system, although this draft legislation has not yet been submitted for examination by the Congress of the Republic. The Committee would be grateful if the Government would keep it informed of any progress in this respect.

10.  The Committee recalls its request for information on the mechanisms for resolving any conflicts between customary law and national law and it notes, from the information provided by the Government, that State bodies intervene as facilitators and mediators in disputes which arise. The Committee requests the Government to provide practical information on cases which have occurred involving the intervention of the State and on their outcome.

11.  Article 9.  The Committee notes the Government’s statement that article 246 of the Constitution on the special indigenous legal system has been applied when considered appropriate. The Committee requests the Government to provide examples of cases in which this article has been applied in practice and the outcomes.

12.  Article 10.  The Government states that the new Penal Code and the Code of Penal Procedures have been adopted and that they contain special conditions respecting the treatment, penalties, detention and rehabilitation of indigenous persons. Noting that both Codes are being reviewed by the Constitutional Court, the Committee requests the Government to keep it informed of any developments in this respect.

13.  Article 11.  With reference to its previous comments concerning the employment of children, the Committee once again recalls its request for information on enforcement mechanisms to ensure compliance with the legislative measures in force, with particular reference to the Young Persons Code (Decree No. 2737 of 1989) and requests it to indicate whether inspectors of the Special Labour Relations Department have reported this problem. Please also include statistics on the number of young indigenous persons engaged in employment, disaggregated by sex and age.

14.  Article 14.  The Committee notes that the Organic Territorial Planning Act, which will regulate the demarcation of Indigenous Territorial Units (ETIs), has not yet been adopted. The Committee therefore repeats its request for the Government to provide a copy of the Act when it has been adopted. In this context, the Committee also repeats its request for full information on the commission appointed to initiate a process of consultation about the basic elements of the Organic Territorial Planning Act and to prepare draft legislation on the concept of indigenous territories.

15.  The Committee notes that the Government has extended the resguardo territory of the Nukak-Maku, the only indigenous group which may be classified as nomadic. The Committee requests the Government to indicate the size of the extension of the territory, and any other special measure taken for the benefit of this nomadic group.

16.  In the absence of a reply from the Government on this matter, the Committee once again repeats its request to the Government to provide information on the measures which have been adopted or are envisaged to resolve conflicting land claims, either between settlers and indigenous groups, or arising out of the juxtaposition of hunting and fishing rights of different indigenous communities within the same territory, as part of the ongoing process of the demarcation of resguardos.

17.  Article 15.  In its previous comments, the Committee noted that the majority of indigenous communities pursue traditional activities, such as hunting, fishing and gathering, to support themselves. In this respect, the Committee repeats its request to the Government to provide information on any special measures which have been taken or are envisaged to strengthen the economic basis of indigenous communities in the use, management and conservation of all the natural resources within their territory.

18.  The Committee once again requests the Government to provide detailed information on the criteria applied in practice for granting concessions for extractive and explorative activities in indigenous areas, including the extent to which the requirement to obtain an authorization is enforced by the relevant indigenous authorities. Furthermore, it once again requests the Government to provide information on the manner in which indigenous peoples participate in any benefits or compensation for damages and prejudice incurred as a result of these activities.

19.  In its previous comments, the Committee noted the draft legislation and regulations on biodiversity, which include mechanisms to guarantee indigenous communities the benefits of using their traditional knowledge in this field. In this respect, the Committee notes the project entitled "Investigation to prepare a proposal for the protection of traditional knowledge in the context of access to genetic resources", which is being reviewed by the Ministry of the Environment. The Committee would be grateful if the Government would provide information on biodiversity as it affects the indigenous communities in the country.

20.  The Committee notes the information contained in the Government’s report concerning the seismic exploration conducted by a private enterprise in the resguardo of the U’wa community. It notes the recommendations contained in the document prepared by the joint team of the Unit for the Promotion of Democracy and the International Affairs Center of the University of Harvard (project OAS/Harvard), entitled "Observations and recommendations on the case of the Samoré Block". According to the report, the Government has endorsed the second phase of the project, although the indigenous community concerned has not expressed an opinion. The Committee requests the Government to indicate any measure which has been taken or is envisaged in this respect.

21.  The Committee previously requested information on the study to be carried out by the Colombian Institute for Agrarian Reform (INCORA) and the Colombian Anthropological Institute on the establishment of a special arrangement to recognize the permanence of the indigenous communities in the national natural parks and their economic right to the use of renewable natural resources, without detriment to the existing environmental conservation policy. The Government states that, by means of Decree No. 1124 of 1999, the Special Administrative Unit of the National Natural Parks System of the Ministry of the Environment (UAESPNN) was entrusted with the administration and management of the areas within the national natural parks system. The Committee notes with interest the policy developed by the UAESPNN, which includes developing participative methods based on dialogue, training and intercultural education for different knowledge systems, and the construction of processes of convergence between the living plans of indigenous peoples and the plans for the management of protected areas, in consultation with indigenous organizations and with the participation of the traditional authorities of indigenous peoples.

22.  Article 16.  The Committee recalls its previous comments concerning articles 63 and 329 of the Constitution pursuant to which, if an indigenous community has to be resettled from a resguardo, once the reason for resettlement ceases to exist, the community may return to its traditional lands, since it does not lose its collective rights to these lands, given that these rights are inalienable. The Committee also recalls that certain indigenous communities have been resettled as a result of the occupation of their lands by third parties and repeats its request to the Government to provide full information on any measures which have been taken or are envisaged to facilitate the return of these communities to their traditional lands.

23.  Article 18.  In the absence of a reply, the Committee repeats its request to the Government to provide information in its next report on any measures which have been taken or are envisaged to protect the land rights of indigenous peoples and to prevent others from securing the ownership, possession or use thereof.

24.  Article 19.  The Committee recalls that the National Recovery Plan (PNR) no longer exists and that its functions have been taken over by the Social Solidarity Network. It also notes that, according to the report, the Indigenous Programme continues and that indigenous persons participate in the National Credit Committee and in regional microcredit committees to agree on infrastructure projects within the framework of a cooperation agreement with the World Food Programme. The Committee requests the Government to provide practical information on the participation of indigenous persons in credit committees and the infrastructure projects carried out. The Committee also repeats its request for information from the Government on any measure intended to facilitate the access of indigenous communities to credit and marketing services, and to other technical services and assistance. Once again, it requests the Government to provide information in its next report on the application in practice of Act No. 160 of 1994, establishing the National System of Agrarian Reform and the Development of Rural Workers, which provides certain benefits for rural workers, including indigenous workers.

25.  Article 20.  With reference to its previous comments, the Committee notes that the Special Labour Relations Department was abolished during the restructuring of the Ministry of Labour and Social Security. It therefore requests the Government to indicate the authority or institution which is responsible for inspecting the recruitment and conditions of employment of indigenous workers. The Committee requests detailed information on the inspection activities undertaken in indigenous areas, including the number of inspections, the violations reported and the measures taken. The Committee once again requests information on the manner in which the application of the principle of equal remuneration for work of equal value is guaranteed in relation to indigenous workers, and how the access of indigenous communities is guaranteed to medical and social assistance, occupational safety and health, health care, social security and housing.

26.  Articles 21 and 22.  With reference to its previous comments on the participation of indigenous persons in programmes run by national vocational training and further training institutions, the Committee notes that the National Apprenticeship Service (SENA) has developed a programme for special populations, which covers indigenous peoples. In this context, it also notes that the SENA has concluded contracts with Colombia Handicrafts (Artesanías de Colombia), a government body attached to the Ministry of Economic Development which is responsible for the development and marketing of Colombian handicrafts. The Committee requests the Government to provide information on special training activities for indigenous communities, including the number of communities in which such activities have been undertaken, and the various types of special training and education provided, and particularly training services which conserve and develop the knowledge and handicrafts of indigenous persons.

27.  Article 24.  The Committee recalls that in its previous comments it noted that indigenous peoples had started to set up health fund management companies, within the framework of the Social Security Act (Act No. 100 of 23 December 1993). The Committee once again requests the Government to provide information on the number of indigenous persons who are covered by such arrangements and on any other measures which have been taken or are envisaged to provide other social security benefits to indigenous communities working in the informal sector.

28.  Article 25.  The Committee notes that, according to the report, measures are being taken to approach the issue of traditional indigenous medicine and steps are being discussed for its regulation. The Committee once again requests the Government to provide detailed information on the measures which have been taken or are envisaged to meet the health needs of indigenous communities, including the activities of the Advisory Council for the Conservation and Development of Traditional Medicine and Alternative Therapies.

29.  Articles 26 to 29.  The Committee once again requests the Government to provide full information on ethno-education, including the results achieved, with special reference to children and young persons aged between 7 and 17 years.