Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 169) relative aux peuples indigènes et tribaux, 1989 - Honduras (Ratification: 1995)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

Article 1 of the Convention. Peoples covered by the Convention. Self-identification. The Committee notes that, in its observations, the Honduran National Business Council (COHEP) refers to the most recent Population and Housing Census conducted in 2013 by the National Institute for Statistics and indicates that the number of people belonging to the “population groups” amounted to 717,618, representing 7.81 per cent of the total national population. The Committee notes that a question on self-identification was included in the Census with a view to identifying, locating, quantifying and characterizing the indigenous, Afro-Honduran and black population in the country, and determining the specific characteristics of these population groups in comparison the national population.

The Committee welcomes the inclusion of a question on self-identification in the most recent population and housing census and requests the Government to provide updated information on the number of persons that belong to the peoples covered by the Convention, disaggregated by sex, age, people and geographical location. The Committee refers to its general observation 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 policies, and encourages the Government to provide information in this respect.

Articles 2 and 33. Coordinated and systematic action. In its previous comments, the Committee noted the adoption in 2016 of the public policy against racism and racial discrimination for the comprehensive development of indigenous and Afro-Honduran peoples (P-PIAH). On that occasion, the Committee requested information on the measures adopted with a view to the implementation of the six sets of rights defined in the P-PIAH (social and political participation; the right to education; the right to health; rights to ancestral heritage resources; the right to land, territory and natural resources; and customary laws), and the results achieved. The Government indicates that, following a broad and participatory consultation process involving over 500 representatives of the nine indigenous and Afro-Honduran peoples undertaken by the Department of Indigenous and Afro-Honduran Peoples (DINAFROH), the action plan was drawn up for the implementation of the P-PIAH. The Government also provides information on some of the activities undertaken by the DINAFROH and, among the challenges encountered, it refers to the need to develop an institutional definition of the DINAFROH, establish a differentiated socio-economic development plan for indigenous and Afro-Honduran communities, introduce municipal development units for indigenous and Afro-Honduran peoples and construct housing.

The Committee requests the Government to indicate the manner in which the adoption of the action plan for the implementation of the P-PIAH has contributed to achieving coordinated and systematic action by Government bodies and institutions at all levels. The Committee hopes that the DINAFROH will be provided with adequate means to enable it to perform its function as a body to support and implement the P-PIAH, along with the institutions identified in the action plan for the implementation of the P-PIAH. It requests the Government to provide information in this regard and on the actions and activities carried out in this context, and the results achieved.

Articles 8 and 9. Access to justice. The Committee requests the Government to continue providing information on the action taken by the Special Prosecutor for Ethnic Groups and Cultural Heritage in the area of training for members of the judicial system on the individual and collective rights of indigenous and Afro-Honduran peoples, as well as the customary laws of these peoples. Please also provide information on the measures adopted to raise the awareness of members of indigenous and Afro-Honduran peoples of their rights and ensure their effective access to justice throughout the country.

Article 14. Land. In its previous comments, the Committee requested the Government to continue taking measures to ensure that progress is made in the processes of clarifying and granting land title and to provide information in this respect. The Committee notes the information provided by the Government on the titles of the Mosquitia territorial councils issued by the National Agrarian Institute (INA), which are pending delivery, as well as on the two titles granted corresponding to a land surface of 107,323 hectares. The grand total of the titles granted to the inhabitants of the 12 territorial councils in Mosquitia correspond to a land surface of 1,114,976 hectares. While it appreciates the efforts made in relation to the peoples of Mosquitia, the Committee notes that the Government has not provided more specific information on the action taken by the INA and the processes of clarifying and granting land title for other indigenous and Afro-Honduran peoples. The Committee notes in this respect that, according to statistics available on the official INA webpage on the definitive land titles issued, from 1993 to 2019, some 517 titles were granted to ethnic population groups and, in the last three years, only one title was granted corresponding to a land surface of 23 hectares. The Committee observes that the webpage of the INA states that, “in accordance with the mandate of the law, which orders titles to be delivered free of charge to the land claimed by the ethnic groups, it is essential that the Government allocate to the INA the funds to acquire the land, so that it may proceed to transfer it to the claimant peoples on a communal basis.” It also indicates that the INA has initiated the implementation of a project for the mapping of indigenous land titles with the aim of identifying the lands and territories for which claims have been made.

The Committee also observes that, in its concluding observations of 2019, the United Nations Committee on the Elimination of Racial Discrimination expressed concern about the serious social conflicts concerning the possession and use of lands and territories that arise between indigenous or Afro-Honduran peoples and third parties that occupy or are interested in exploiting the natural resources in such territories (CERD/C/HND/CO/6-8). The Committee further notes that, in its 2019 report on the human rights situation in Honduras, the Inter-American Commission on Human Rights (IACHR) indicates that: “One of the main complaints heard by the IACHR was of encroachment on their collective property due to a lack of demarcation, titles and clarification of their lands and territories as well as the increase in concessions without holding free, prior, and informed consultations. The IACHR received concerning information on the granting, by public institutions and judicial authorities, of private titles granted to third parties for lands and territories claimed by indigenous peoples and peoples of African descent” (OEA/Ser.L/V/II. doc. 146).

The Committee trusts that the Government will step up its efforts to ensure the effective protection of the rights of ownership and possession of the indigenous and Afro-Honduran peoples to the lands which they traditionally occupy and safeguard their right to use lands to which they have traditionally had access for their subsistence and traditional activities. Please also provide detailed and updated information on the progress made in mapping indigenous titles, indicating how indigenous and Afro-Honduran peoples have participated in the process; the land claims made by indigenous and Afro-Honduran peoples; and on the measures taken to resolve the conflicts that have arisen due to the encroachment of third parties onto their lands.

Articles 7 and 15. Natural resources. In its previous comments, the Committee requested the Government to provide information on the procedures established with a view to the consultation of indigenous and Afro-Honduran peoples prior to undertaking or authorizing any programme for the exploration or exploitation of resources pertaining to their lands. The Government refers to the provisions of the regulations adopted in 2015 of the National Environmental Impact Assessment System (SINEIA) and indicates that section 5 defines the concept of “zone of environmental fragility” and “protected zone”. The Government adds that, taking into account these definitions, the territory of indigenous areas is deemed to fall under these categories. The Government also indicates that, for any project that is initiated in these zones, an environmental impact study must be undertaken. The environmental study must be deposited in locations established by the General Directorate for Environmental Assessment and Control (DECA) for public consultation. Any person or organization may express their opinions regarding this document. The study shall be reviewed and approved by the DECA. The Government adds that, under section 60, taking into account the environmental conditions and significance of the project, works or activity, the Secretariat of State for the Environment shall have the power to call a hearing or public forum for the open discussion of the project, without distinction between indigenous peoples and the non-indigenous population.

The Committee notes the COHEP’s indications in its observations that the open council and citizen consultation procedures are still followed in accordance with the provisions of the General Mining Act and the Municipalities Act. The COHEP also refers to difficulties in relation to the representativity of certain organizations. Some organizations have been excluded from various dialogue bodies in favour of others that do not have the legitimacy of the indigenous peoples. It also refers to the paralysis of certain renewable energy projects and mines.

The Committee recalls that, in accordance with Article 7 of the Convention, Governments shall ensure that, whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The Committee requests the Government to provide detailed information, with specific examples, on: (i) how the cooperation of indigenous and Afro-Honduran peoples is obtained in practice for the assessment the social, spiritual, cultural and environmental impact of planned development activities; and (ii) how the results of these studies have been considered as fundamental criteria for the implementation of these activities. Please also indicate how indigenous peoples and peoples of African descent are consulted before any programmes are undertaken or authorized for the exploration or exploitation of resources pertaining to their lands.

Mining activities. In its previous comments, the Committee requested the Government to provide examples of the citizens’ consultations held within the framework of the procedures set out in the General Mining Act prior to adopting a decision to grant an exploration or exploitation concession, with an indication of the manner in which the right to consultation was respected in cases in which indigenous peoples might be affected. In this respect, the Government reports that the Constitutional Chamber of the Supreme Court of Justice has found several sections of the General Mining Act to be unconstitutional, including section 67, which provided for citizen consultations. The Government indicates that it has no experience in conducting consultations with indigenous and Afro-Honduran peoples as there are no records of mining rights being granted in indigenous communities. The mining concessions granted in the country correspond to rights acquired under previous legislation that envisaged consultation and information mechanisms. Taking into account the decision of the Constitutional Court, the Honduran Institute of Geology and Mines has refrained from granting mining concession rights for exploitation and is including the right to consultation established in the Convention in the reform of the sections found to be unconstitutional. The Government also indicates that the Institute has established a unit for preventing and managing mining conflicts, the functions of which include providing a suitable complaints mechanism and any other action arising from problems related to mining.

The Committee notes that, in its observations, the COHEP indicates that it confirmed with the National Association of Metal Mining of Honduras (ANAMIMH) that to date no mining concessions for exploitation have been granted and therefore no consultations have taken place. However, open councils have been held on concessions for exploration.

The Committee recalls that Article 15 of the Convention establishes the requirement for specific procedures for the consultation of indigenous peoples with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands. The Committee therefore requests the Government to take into consideration the obligations arising out of this provision in the revision process of the General Mining Act. In the meantime, the Committee requests the Government to indicate how indigenous and Afro-Honduran peoples are consulted before mining exploration concessions are granted and to provide examples in this respect. Please also report whether the unit for preventing and managing mining conflicts has received complaints from indigenous and Afro-Honduran communities in relation to mining exploration and exploitation on their lands (consultation, participation in the benefits, etc.).

Article 24. Social security. Health. In reply to the Committee’s previous comments, the Government indicates that the National Programme of Care for Ethnic Groups (PRONAE) has not been implemented, but that, the DINAFROH has managed a series of projects with various cooperation agencies to make progress in the social security coverage of indigenous and Afro-Honduran peoples. In its supplementary information provided in 2020, the Government refers to the construction of four health infrastructure projects which have benefited the Lenca, Garífuna, Tolupán and Miskitio peoples (the maternity wing of the Regional Hospital of Intibucá, the extension of the paediatrics area of the Hospital of Puerto Cortes, and the health and maternity and infant establishment in Montana de la Flor). The Committee requests the Government to continue providing information on the health projects implemented by the DINAFROH, indicating how indigenous and Afro-Honduran peoples participate in their design and implementation. The Committee also requests the Government to provide information on the measures adopted to increase the number of indigenous persons covered by the social security system or who receive social assistance or other benefits, for example in the context of the social protection floor.

Article 28. Education. The Committee notes that, in its observations, the COHEP refers to the programme for the recovery of indigenous languages and indicates that the Secretariat of State for Education established a sub-directorate for the education of indigenous and Afro-Honduran peoples, which aims to ensure the full development of intercultural bilingual education. The Committee notes that, in its concluding observations of 2019, the United Nations Committee for the Elimination of Racial Discrimination expresses concern at the persistent difficulties encountered by indigenous and Afro-Honduran peoples in obtaining access to education, referring in particular to: the deteriorating conditions in schools located in regions inhabited mainly by indigenous and Afro-Honduran peoples; the high school drop-out rate; and the high proportion of the indigenous population who are unable to read or write (CERD/C/HND/CO/6-8). The Committee requests the Government to provide information on the programmes and activities implemented, in cooperation with indigenous and Afro-Honduran peoples, by the sub-directorate for the education of indigenous and Afro-Honduran peoples to reduce the school drop-out and illiteracy rates among indigenous and Afro-Honduran peoples.