Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

Convention (n° 169) relative aux peuples indigènes et tribaux, 1989 - Venezuela (République bolivarienne du) (Ratification: 2002)

1. The Committee notes with interest the legislation on indigenous matters adopted by the Bolivarian Republic of Venezuela, and particularly the Organic Act on Indigenous Peoples and Communities, approved in December 2005, which will contribute to improving the application of the Convention. The Committee requests the Government to provide information on the application in practice of the Organic Act and of other legislation respecting indigenous matters.

2. Article 1 of the Convention. Identification as indigenous or tribal. The Committee notes that the Regulations issued under the Organic Act respecting the identification of indigenous persons refer explicitly to the right of individual and collective self-identification (section 2 of the Regulations). The Committee, noting that the United Nations Committee for the Elimination of Racial Discrimination has invited the Government to ensure that the identity document for indigenous persons is based on self-identification by the individual concerned (CERD/C/VEN/CO/18, paragraph 15), requests the Government to provide information on this issue, with particular reference to the application of section 2 of the Regulations in practice. The Committee once again hopes that the Government will provide a copy of the indigenous census if it contains information on the living and working conditions of the indigenous peoples in the country.

3. Articles 2, 6 and 33. Consultation and coordinated and systematic policy. The Committee notes that under the present constitutional provisions, an inter-cultural approach and full and active participation are basic principles, alongside self-management and co-management, in the dialogue between society and the State. The Committee further observes that, as indicated by the Government in its report, the main objective of the State’s indigenous policy is to contribute to the process of the self-determination of indigenous peoples so that they can decide upon their present and future. In particular, the General Directorate of Indigenous Affairs is responsible for formulating the national policy in relation to the development of strategies for the participation of members of indigenous peoples in decision-making in the context of public administration. In this respect, the Committee recalls that Articles 2 and 33 of the Convention require the participation of indigenous peoples in the formulation of the coordinated and systematic policy on matters that affect them. The Committee, therefore, requests the Government to provide information on the measures taken or envisaged by the General Directorate of Indigenous Affairs to secure the participation of indigenous peoples in the formulation of public policies on indigenous matters. It also invites the Government to provide information on the composition of the General Directorate of Indigenous Affairs and to clarify the relationship between that body and the National Institute for Indigenous Peoples established by the Organic Act on Indigenous Peoples and Communities in 2005.

4. The Committee notes that the functions of the above Institute include advising the leading body on indigenous policy in the country on the formulation of public policies in relation to indigenous matters. The Committee notes that the President and Vice-President of the Executive Board of the Institute will be appointed by the President of the Republic upon the proposal of the indigenous peoples, with the other members being nominated by the President of the Institute. Nevertheless, the Committee recalls that, in accordance with Article 6 of the Convention, the participation and consultation of indigenous peoples shall take place through their representative institutions. The Committee notes that in its previous report, the Government indicated that the participation of indigenous peoples had been ensured in the formulation of the Organic Act on Indigenous Peoples and Communities. Despite its previous request for information on the manner in which this participation had been carried out, the Committee notes that it has not been provided with information on this subject. The Committee requests information on the manner in which the participation of indigenous peoples is guaranteed in the Institute and their real level of representation. The Committee also requests the Government to keep it informed of its composition and activities. The Committee requests the Government to adopt the necessary measures to ensure that indigenous peoples are consulted through appropriate procedures and their own representative institutions in relation to each legislative or administrative measure that may affect them, and it requests the Government to keep it informed in this respect. The Committee also hopes that the Government will adopt the necessary measures to ensure that indigenous peoples participate in the adoption of decisions by the bodies responsible for policies and programmes which concern them, in accordance with Articles 2 and 33 of the Convention, and that it will keep the Committee informed in this respect.

5. Article 3. Enjoyment of human rights. The Committee notes with interest that the National Office of the Special Attorney for Indigenous Peoples is responsible for promoting the defence and monitoring of the rights and constitutional guarantees which assist indigenous peoples. It also supervises compliance with the human rights established in treaties, Conventions and international agreements to which the Bolivarian Republic of Venezuela is party. The Committee once again requests the Government to provide information on the activities of the National Office of the Special Attorney and to provide copies of the materials produced by the Office, including reports and publications.

6. Article 20. Labour. The Committee notes that, according to the Government, the judicial system in the Bolivarian Republic of Venezuela protects all citizens from any form of racial discrimination which may be encountered in relation to work. Nevertheless, the Government does not refer to any special measures that have been taken to ensure the effective protection of indigenous workers with regard to recruitment and conditions of employment “to the extent that they are not effectively protected by laws applicable to workers in general”. As it did in its previous direct request, the Committee recalls that experience from many countries has shown that these peoples are often especially vulnerable to abuse in the field of labour. The Committee requests the Government to provide information on the situation of workers from indigenous populations, including statistical data.

7. Articles 21 and 22. Vocational training. The Committee notes from the Government’s report that indigenous populations can count on their human rights being guaranteed and on participation in a multi-cultural context. While noting these aspects, the Committee trusts that the Government will provide information on the measures adopted to ensure that indigenous peoples have access to training on at least an equal footing with the rest of the national community. The Committee also trusts that the Government will provide information on the special training programmes and facilities that are made available to indigenous peoples with the participation of such peoples.

8. Articles 13 and 14. Land. The Committee notes with interest the land demarcation procedure envisaged by the Organic Act for Indigenous Peoples and Communities, which will be undertaken with the participation of the legitimate authorities of indigenous peoples and with reference to the ancestral and traditional knowledge provided by indigenous elders on the occupation of the habitat and of lands, in accordance with section 33 of the Organic Act.  In this respect, the Committee recalls that Articles 13 and 14 of the Convention have to be interpreted in the light of Article 2(1) of the Convention regarding coordinated and systematic State action. The Committee also recalls that, with regard to the effect given to these provisions in practice, Articles 13 and 14 have to be read in conjunction with Article 6 respecting the consultation procedures with the peoples concerned. The Committee requests the Government to keep it informed on the status of the demarcation procedure, and particularly on the manner in which the indigenous peoples concerned participate in it.

9. Article 16. Removal and relocation. The Committee notes that, according to the Government, indigenous peoples may be relocated from the lands that they occupy in cases of natural disasters and the construction of hydraulic and/or hydroelectric works. Under the terms of Article 16(2), “Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.” The Committee further recalls that, under paragraph 3 of the same Article, whenever possible, the indigenous peoples concerned “shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist”. The Committee requests the Government to provide information on the manner in which the national legislation provides for appropriate procedures in which indigenous peoples can be effectively represented, and on cases in which relocations have occurred and the procedure that was applied. It also requests information on the measures adopted in such cases to relocate and compensate the indigenous peoples concerned, in accordance with paragraph 5 of this Article. .

10. Article 15. Natural resources. The Committee notes with interest the new provisions on the exploitation of natural resources which have been included in the Organic Act for Indigenous Peoples and Communities (sections 53–59). The Committee would be grateful if the Government would provide information on the manner in which effect has been given to these provisions in practice, with practical examples, particularly concerning the prior consultation of the indigenous communities concerned, environmental and socio-cultural impact studies, the payment of compensation and the participation of the above communities in the benefits, as envisaged in sections 54, 55, 58 and 57 of the above Act.

11. Article 32. Contacts and cooperation across borders. The Committee notes the existence of joint operations between Brazil and the Bolivarian Republic of Venezuela to prevent the exploitation of illegal mines on indigenous lands. The Committee would be grateful if the Government would provide information on the implementation of these initiatives, with particular reference to the conclusion of any agreements with Brazil which might affect indigenous peoples living on both sides of the border.