Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

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

Article 1 of the Convention. Peoples covered by the Convention. Self-identification. In its previous comments, the Committee noted that the Directorate for Indigenous, Roma and Minorities Affairs (DAIRM) was responsible for keeping the registry of peoples covered by the Convention. The Committee requested the Government to provide information on this matter and on the self-censuses of indigenous peoples. In its report, the Government states that, from 2013 to September 2018, a total of 3,416 censuses have been uploaded into Colombia's indigenous information system. The Government indicates that, in September 2014, the DAIRM issued a circular with instructions for indigenous authorities and/or councils on carrying out censuses. The DAIRM defines the indigenous self-census as an autonomous exercise carried out by indigenous authorities through census lists in order to establish the social composition of their communities, and the periodical developments on account of births, deaths, migration and marriages. In this process, the governing council of each reservation and community or group is responsible for the self-census and its supervision. The Committee requests the Government to provide updated statistical data on the number of persons belonging to peoples covered by the Convention, disaggregated by sex, age, people and geographical location, as well as examples of self-censuses, indicating how they are used. The Committee refers to its general comment of 2018 in which it reiterated the importance of having reliable statistical data on the peoples covered by the Convention, including on their socio-economic conditions, as a tool for effectively guiding and defining public policies, and encourages the Government to provide information in this regard.

Article 4. Protection of the rights of indigenous peoples in isolation. The Committee notes with interest the adoption of Decree No. 1232 of 17 July 2018 establishing the National System for the prevention and protection of the rights of indigenous peoples living in isolation or natural conditions. The objectives of the system include developing and implementing measures to protect the rights of peoples in living isolation, by ensuring the participation of indigenous peoples in surrounding areas, and strengthening the competent public institutions. Under the system, the National Committee for the prevention and protection of the rights of indigenous peoples living in isolation has been established, whose objective is to guide the development of strategies for the planning and management of the system and which is composed of various governmental department employees, indigenous members of the Standing Dialogue Forum and indigenous representatives of civil society organizations. The Committee requests the Government to provide information on the protective measures adopted by the National System for the prevention and protection of the rights of indigenous peoples living in isolation, indicating how it ensures that such a system has the means and resources necessary to achieve its objectives.

Article 7. Development. The Committee notes the adoption of Act No. 1955 of May 2019, which sets out the National Development Plan 2018–2022, “Pact for Colombia, Pact for Equity”. The Plan aims to lay the foundations of legality, entrepreneurship and equity for the achievement of equal opportunities for all Colombians. The Plan consists of public policy objectives known as “pacts”, including the Pact for equality of opportunity among indigenous, Black, Afro-descendant, Raizal, Palenquero and Roma groups. According to information from the National Planning Department, the objectives of the Pact are to increase comprehensive care for children of ethnic origin, from early childhood to adolescence; improve access and health outcomes for ethnic groups through an intercultural approach; and narrow the gap in their access to basic services. The Committee requests the Government to provide information on the measures taken within the framework of the Pact for equality of opportunity among indigenous, Black, Afro-descendant, Raizal, Palenquero and Roma groups and on any evaluations conducted on the impact of the measures. In this regard, the Committee requests the Government to clarify the manner in which the peoples covered by the Convention have participated in the development, implementation and evaluation of these measures.

Articles 5 and 7. Protection of cultural values and practices. Raizal fishers. The Committee recalls that, for some years now, it has been addressing the situation of Raizal small-scale fishers in the Department of San Andrés, Providencia and Santa Catalina, referring to the constraints they have faced in the exercise of their traditional fishing activities. In its previous observation, the Committee noted the Government’s initiative to prepare a Statute for the Raizal people and requested the Government to continue providing information on the measures taken to improve the conditions of life and work of the Raizal people. The Government reports that, within the context of a prior consultation process, the Bill, through which the rights of the Raizal ethnic people of the Archipelago of San Andrés, Providencia and Santa Catalina are recognized under the Statute for the Raizal people, has been finalized and submitted to the Senate for approval. Under the Bill, the right is recognized of the Raizal people to prior consultation and participation in the design, development and evaluation of environmental, socio-economic and cultural impact studies on projects likely to affect them directly. The Bill also provides for the establishment of the Forum for discussion and cooperation of the Raizal people as a body for dialogue with the Government. The Government also reports the development of a special plan for safeguarding ancestral knowledge and skills, and Raizal cultural practices relating to their coexistence with the sea, 2016, as a result of a participative process with the Raizal people. The Committee welcomes the progress made in developing the Statute for the Raizal people and trusts that the Government will take the necessary measures to adopt and implement the Act, through which the rights of the Raizal ethnic people of the Archipelago of San Andrés, Providencia and Santa Catalina are recognized under the Statute for the Raizal people, in cooperation with the indigenous peoples concerned. The Committee requests the Government to provide information on this subject, as well as on the implementation in practice of the special plan for safeguarding the ancestral knowledge of the Raizal people, indicating how the plan has contributed to the improvement of the conditions of life of the Raizal people and the protection of their traditional fishing activities.

Articles 6 and 15(1) Consultation. Legislative measures on the use of natural resources. In its previous comments, the Committee noted the consultations on draft legislative texts at the national level held through the Standing Dialogue Forum with indigenous peoples and organizations, and requested the Government to continue providing information on the outcome of those consultations. The Committee notes the list provided by the Government of draft legislative texts which were submitted for consultation between 2010 and 2018 to the Standing Dialogue Forum. These drafts include the proposal for a decree establishing and recognizing the competencies of the indigenous territories’ authorities with respect to the administration and preservation of natural resources and the environment. The Committee also notes the adoption of Decree No. 1372 of 2 August 2018, establishing a national space for prior consultation with the Black, Afro-Colombian, Raizal and Palenquero communities, which aims to serve as a forum for dialogue with the Government to advance the various stages of prior consultation on general legislative and administrative measures. The Government indicates that two prior-agreements have been reached through this forum with the Black, Raizal and Palenquero communities on the regulation process of Chapter IV of Act No. 70 of 1993, on transitory article 55 of the Political Constitution of Colombia, referring to the use of land and protection of natural resources, and the environment of the Black communities of the Pacific. The Committee requests the Government to report on the laws adopted following consultation with the peoples covered by the Convention, with examples of how those peoples have been able to influence the legislative texts adopted and how their proposals have been taken into consideration. In this connection, the Committee also requests the Government to provide information on the agreements reached, within the consultation process, and draft legislative texts regulating the use of natural resources by indigenous and Afro-descendant communities.

Articles 7 and 15. Natural resources. Impact studies of mining activities. In its previous comments, the Committee referred to the Mandé Norte and La Toma mining projects and noted that the Ministry of the Environment was undertaking environmental impact studies of mining activities in the indigenous communities in the reservations concerned. In this regard, the Government indicates that there are currently no records of procedures or granting of environmental licences related to the development of this project. In relation to the La Toma project, the Government indicates that the Ministry of Mines and Energy led the consultation process with the communities concerned. The Committee requests the Government to continue providing information on the mining projects that have been approved following a consultation process with the peoples concerned, indicating also how the outcome of environmental, social and cultural impact studies, undertaken with the participation of those peoples, have been considered fundamental criteria for carrying out such mining projects. Referring to its 2015 direct request, the Committee trusts that the necessary measures will be taken to ensure access to natural sources of water of the communities of Guajira.

The Committee further notes that the United Nations High Commissioner for Human Rights, in her report for Colombia, refers to violations of the right to health of indigenous peoples owing to the pollution of rivers used by these peoples as a result of mining activities (A/HRC/40/3/Add.3 of 4 February 2019, paragraph 62). The Committee also requests the Government to report on the measures adopted to protect the environment, including rivers, of the territories inhabited by the peoples covered by the Convention and of those where mining activities are carried out.

Articles 14, 17 and 19. Lands. The Committee notes the Government’s indication regarding the establishment of the National Land Agency (ANT), through Decree No. 2363 of 2015, replacing the Colombian Institute of Rural Development. The functions of the ANT include promoting the training of ethnic communities on managing the formalization and regularization of property rights; and agreeing and implementing, with these communities, the assistance plans that cover collective land titling programmes; the establishment, expansion, delineation and restructuring of indigenous reservations; acquisition and expropriation of land; and improvements.

In its previous comments, the Committee noted the measures adopted for the restitution of the ancestral lands of the Nasa indigenous communities of northern Cauca and the Afro-Colombian communities of Curvaradó and Jiguamiandó, and requested the Government to continue providing information on the restitution processes, as well as on the activities undertaken to ensure the personal and cultural integrity of these communities. In its reply, the Government indicates that between 1993 and 2016, seven reservations were established and six have been expanded for these peoples, benefiting 8,239 families over a total area of 35,849 hectares. With respect to the Curvaradó and Jiguamiandó communities, the Government reports that of the 156 plots of land that were separated from the collective titles of Curvaradó and Jiguamiandó, the ANT only received ten voluntary offers from the landowners. The ANT has made arrangements for the acquisition of the ten plots of land within the framework of the delineation of the collective territory of these communities. In relation to the other plots, visits have been carried out to verify the security of the area and actions have been taken for the re-housing of properties, which have been suspended due to the lack of minimum security conditions. The Committee also notes that the Government has implemented programmes to promote rural development for indigenous and Afro-descendant communities at the national level, and in particular for displaced families and voluntary returnees.

The Committee notes that, in their joint observations, the Confederation of Workers of Colombia and the Single Confederation of Workers of Colombia provide information on land claims, such as the case recognizing the ancestral lands of the Barí people, and express their concern at the ongoing conflicts over land between indigenous communities and non-indigenous people from rural areas. The trade unions consider that the problem concerning the recognition of ancestral lands stems from the superposition of multiple legal systems that creates conflicts between indigenous and rural peoples. The Committee also notes that the 2018 report of the Attorney General’s Office, entitled “Systematic violence against territorial rights defenders in Colombia”, states that State institutional weakness, at both legal and structural levels, in the constitutional protection of the territories of indigenous peoples and of Black, Afro-Colombian, Raizal and Palenquero communities, has generated long-term conflicts, fuelled by violent interactions over the years.

The Committee requests the Government to provide updated and detailed information on the activities of the National Land Agency relating to progress in land restitution processes for indigenous and Afro-descendant communities, in particular those who were displaced during the armed conflict, indicating the number and names of the beneficiary communities. It requests the Government to indicate the means and financial resources available to the ANT and other bodies responsible for resolving land restitution claims, and the conflicts generated in this respect. The Committee requests the Government to intensify its efforts to resolve the remaining land conflicts between indigenous communities and non-indigenous persons and to provide information on this matter.

Articles 20 to 22. Conditions of employment. Vocational training. The Committee notes that the Government, through the Directorate for the generation and protection of employment and family allowance of the Ministry of Labour, has identified various barriers to the integration of ethnic groups into the labour market, including a lack of awareness of their community skills, lack of procedures to strengthen their organizational processes from a commercial perspective, lack of basic and secondary education, and lack of knowledge of Spanish. The Government indicates that both the National System for victim support and reparation and the Standing Dialogue Forum with indigenous peoples and organizations seek to encourage differentiated active employment policies. The Committee also notes that, in its concluding observations, the United Nations Committee on Migrant Workers emphasized that the indigenous population on the border between Colombia and the Bolivarian Republic of Venezuela, particularly the Yukpa, and Wayuu peoples, and the Warao cross-border community, are in a situation of vulnerability and face threats of abuse, forced labour and slavery (CMW/C/COL/CO/3 of 13 September 2019, paragraph 52). The Committee requests the Government to take measures to strengthen the vocational, occupational and commercial skills of indigenous peoples to promote their integration into the labour market. The Committee also requests the Government to indicate the measures taken to ensure that the labour inspectorate can carry out its activities in border areas with a high concentration of indigenous migrant workers, in order to monitor their working conditions.

Articles 24 and 25. Social security and health. The Committee notes the Government’s indication that the Ministry of Health and Social Welfare has been taking steps to guarantee that ethnic groups are covered by the General Health and Social Security Scheme (SGSSS). The Government indicates that it is the obligation of health providers and public hospitals to deliver care to ethnic groups not affiliated with the SGSSS and not able to pay. It indicates that affirmative actions have been taken through the inclusion of the indigenous population in the SGSSS’s subsidized branch and that the funds for the subsidies for this population are channelled by the State through the mayor’s offices to the bodies promoting indigenous health. The Committee notes the detailed information provided by the Government on the manner in which ethnic groups participate in the SGSSS and the specific actions carried out by the Ministry of Health and Social Welfare with the indigenous, Afro-descendant and Roma populations. It also notes that the healthcare sub-committee of the Standing Dialogue Forum with indigenous peoples and organizations has been working on structuring the independent and intercultural indigenous health system. The Committee requests the Government to continue providing information on the progress made in expanding the social security regime to indigenous peoples, specifying the number of persons belonging to the peoples covered by the Convention who are under the subsidized scheme. The Committee also requests the Government to report on the progress made in structuring the independent and intercultural indigenous health system, indicating how the cooperation of indigenous peoples in the administration and organization of health services is guaranteed.

Part VI. Education. The Committee notes the Government’s indication that the Ministry of National Education has collaborated with national indigenous organizations in the development of the independent indigenous education system, for which the Standing Concertation Forum adopted methodology for the consolidation of a draft standard on the subject. The Committee notes that the report of the Coordinating Body of Indigenous Organizations in the Amazon Basin (COICA) indicates that, despite the significant autonomy granted to the indigenous authorities in the management of their educational policies, the Government retains the competence for coordinating curricular and pedagogical principles at all levels of education. The Government points out that it has also been consolidating the educational policy for the Black, Afro-Colombian, Raizal and Palenquero populations within the National Pedagogical Commission. Within the context of a differential approach in national education, the Government indicates that between 2007 and 2017 it signed approximately 292 agreements with indigenous organizations and 42 agreements with community organizations and councils of Black, Afro-Colombian, Raizal and Palenquero communities for the development of ethnic group-based educational projects. The Government reports on the implementation of a training plan for community teachers with an intercultural approach and on progress in the development of a training plan for translators and interpreters in native languages and Spanish. The Government also indicates that it has developed the Higher Education Inclusion Index as a tool that enables higher education institutions to recognize the manner in which they manage the diversity of their students. In addition, in order to ensure that Black, Afro-Colombian, Raizal and Palenquero populations access and remain in higher education, the Government has launched the Black Communities Fund, which has benefited a total of 294 students from the departments of Chocó, Valle, Cauca, Nariño, Atlántico and Bolívar, the majority of whom are women of African descent. The Committee requests the Government to continue providing information on progress in the development and establishment of an intercultural education system, indicating how this is coordinated with the general national education system, and how cooperation is facilitated with the peoples covered by the Convention in the development and implementation of study programmes. The Committee also requests the Government to continue providing updated data on the number of students enrolled in programmes designed to promote access to and retention of members of indigenous peoples and persons of African descent in higher education institutions.