Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Colombia (Ratification: 1991)

The Committee takes note of the communication of 27 August 2009 by the Workers’ Trade Union Confederation of the Oil Industry (USO), sent to the Government on 2 September 2009. It also notes the communication of 28 August 2009 from the Union of Workers of the National Mining Enterprise “Minercol Ltda.” (SINTRAMINERCOL), sent to the Government on 18 September 2009. If further notes the communication of 31 August 2009 by the International Trade Union Confederation (ITUC) sent to the Government on 3 September 2009. The Committee notes that the Government’s report was received on 14 August 2009 and that, consequently, it contains no observations responding to the abovementioned communications.

The Committee notes that the recent communications from the USO, SINTRAMINERCOL and ITUC follow up on issues raised by the Committee in its previous comments, such as the situation of the Afro-Colombian communities of Curvaradó and Jiguamiandó, the situation in the Chidima and Pescadito reservations and the situation of the Embera Katío peoples of Alto Sinú. A new dimension that arises is that of the implementation of the Mandé Norte project which is affecting the Afro-Colombian community of Jiguamiandó and the Embera community of the Urada Jiguamiandó reservation and is related to matters brought up by the Committee in earlier comments.

In view of the gravity of the events alleged, the persistence of the issues raised by the Committee and the irremediable consequences that could result, the Committee will have regard to the relevant information contained in the new communications, as it relates to matters that have already been raised by the Committee. Before turning to the specific cases, however, the Committee deems it appropriate to make some general remarks on the situation of indigenous and Afro-Colombian peoples in Colombia, since the problems in applying the Convention indicated in the communications are widespread.

The Committee notes with serious concern the persistence of violence in the country. It is particularly worried to note that the indigenous and the Afro-Colombian communities are still the brunt of violence, intimidation, dispossession of lands and the imposition of projects on their territory without consultation or participation, and continue to suffer violations of the rights laid down in the Convention. It notes with regret that, according to the communications, the leaders of these communities and the organizations involved in defending the communities’ rights are often the victims of violence, threats, harassment and stigmatization because of their work and that, according to the allegations, the offenders often go unpunished.

The Committee takes notes of the statement made by the United Nations Special Rapporteur on the situation of human rights defenders on completion of a mission to Colombia in September 2009 to the effect that indigenous and Afro-Colombian leaders, as well as other categories of human rights defenders, have been killed, tortured, ill treated, disappeared, threatened, arbitrarily arrested and detained, judicially harassed, under surveillance, forcibly displaced or forced into exile (United Nations Press Release, 18 September 2009). The Committee also notes that, according to the Special Rapporteur on extrajudicial summary of arbitrary executions, such executions affect the indigenous and Afro-Colombian peoples disproportionately (Press Release, 18 June 2009). The Committee notes that similar concerns were expressed by the United Nations Committee on the Elimination of Racial Discrimination and the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (see, respectively, concluding observations, CERD/C/COL/CO/14, 28 August 2009, paragraphs 12, 14 and 15, and Preliminary note on the situation of indigenous peoples in Colombia, A/HRC/12/34/Add.9, 23 September 2009) which likewise emphasize that there are serious problems regarding the indigenous and Afro-Colombian communities’ rights to land and consultations (respectively, paragraphs 19–20, and 10–11).

The Committee notes that according to Resolutions Nos 004 and 005 of January 2009 by the Constitutional Court of Colombia which concern indigenous and Afro-Colombian peoples who have been, or are in danger of being, forcibly displaced, there is “a general attitude of indifference at the horror the indigenous communities of the country have had to bear in recent years”. It also notes the Court’s view that “the response of the state authorities ... has mainly been to issue rules, policies and official documents, which, while valuable, have had little practical effect” (Resolution No. 004).

The Committee notes with concern from the Government’s report that in the last year there has been a significant increase in the number of killings of indigenous people. It notes the Government’s statement that the National Directorate of Public Prosecutions has devised and is implementing a comprehensive action plan aimed at greater efficiency in the investigation of cases in which the victims are members of indigenous communities. It also notes the initiatives taken to comply with the orders set forth in Resolution No. 004 of the Constitutional Court concerning the preparation of a “programme to guarantee the rights of indigenous peoples affected, or in danger of being affected, by displacement” and “ethnic safeguard plans”.

The Committee urges the Government to:

(i)    adopt without delay and in a coordinated and systematic manner all necessary measures to protect the physical, social, cultural, economic and political integrity of the indigenous and Afro-Colombian communities and their members and to guarantee full observance of the rights laid down in the Convention;

(ii)   take urgent measures to prevent and punish acts of violence, intimidation and harassment against members of the communities and their leaders and to investigate the alleged offences efficiently and impartially;

(iii) immediately suspend the implementation of projects affecting indigenous and Afro-Colombian communities until an end has been put to all intimidation of the affected communities and their members and until the participation and consultation of the peoples concerned has been ensured through their representative institutions in a climate of full respect and trust, pursuant to Articles 6, 7 and 15 of the Convention;

(iv)  provide detailed information on the results of the investigations held under the action plan of the National Directorate of Public Prosecutions; and

(v)   provide information on the measures taken to comply with the resolutions of the Constitutional Court.

Afro-Colombian communities of Curvaradó and Jiguamiandó. In its previous observation the Committee expressed deep and growing concern at the allegations made in the USO’s communication of 2007 and at the lack of any response to them by the Government. The USO referred in particular to the presence of paramilitary groups in the community territory, impunity for violations of the fundamental rights of members of the community and the “judicial persecution” against members of these communities and members of supporting organizations who are accused of assisting the guerilla. The Committee urged the Government to take the necessary measures without delay to guarantee the lives and physical and moral integrity of the members of the communities, to put an end to all persecution, threats or intimidation and to ensure that the rights laid down in the Convention are implemented in a climate of security.

The Committee notes with deep concern that, according to the USO’s communication of 2009, the threats, harassment and attempts on the lives and integrity of members of the community have not stopped. The USO alleges in its communication that although the Colombian Institute for Rural Development (INCODER) issued Resolutions Nos 2424 and 2155 in 2007 clarifying and setting the boundaries of the private property of community territories, recognizing collective entitlement, in a show of bad faith third parties continue to occupy these lands. It further alleges a lack of prompt and timely investigations of those responsible, and the persistence of “judicial persecution” and smear campaigns against members of the communities and their supporting organizations.

The Committee notes that according to the Government’s report, in February 2009 the company “Agropalma” voluntarily handed over 254 hectares of territory to the Community Council of the Rio Curvaradó Basin. According to the report, 220 of these were sown with palm trees, 100 per cent of which were diseased (bud rot) upon delivery. The Committee notes that the legal offices of the Ministry of the Interior and Justice and the Ministry of Agriculture and Rural Development are engaged in initiatives for the physical restitution of the territories. The Committee refers to its previous comments and also urges the Government to take all necessary steps to ensure effective protection of the rights of the Curvaradó and Jiguamiandó Afro-Colombian communities over their lands, and to prevent any intrusion, in accordance with Articles 14(2) and 18 of the Convention. Please provide information on the measures taken to this end and report on the restitution of lands at the initiative of the abovementioned ministries.

The Embera Katío and Embera Dóbida peoples. Chidima and Pescadito reservations. In its previous observation, the Committee noted the invasion by outsiders of the lands of the Embera Katío and Embera Dóbida peoples and a series of activities that were implemented without consulting these peoples. The Committee urged the Government to take steps as a matter of urgency to put an end to the intrusion and asked it to join the three plots of the Chidima reservation into one in so far as there had been traditional occupation of the land. It also asked the Government to suspend activities arising from concessions granted for exploration and/or infrastructure projects, pending the consultation and participation of the indigenous peoples, in accordance with Articles 6, 7 and 15 of the Convention.

The Committee notes that in its communication of 2009, the USO alleges that the Government has taken no steps to carry out a study of traditional occupation by these communities in the Chidima reservation with a view to joining the three plots, as the Committee requested. It also notes that the settlers are still present. It notes that according to the Government’s report, as a result of Constitutional Court decision No. C-175 of 2009, the establishment, reorganization, restructuring and extension of reservations is no longer the responsibility of the Directorate of Indigenous Affairs, Minorities and Roma of the Ministry of the Interior and Justice, but of INCODER.

The USO also states that the abovementioned projects are still ongoing with no consultation of the indigenous peoples. It also asserts that there have been threats to the lives and physical integrity of a number of indigenous leaders and that the army’s presence in the territory is growing ever more permanent. Further, on 1 June 2009, the communities filed a constitutional complaint (acción de tutela) against the national bodies, seeking a halt to the construction works for the Ungía-Acandí highway, and the infrastructure, hydroelectric and mining exploration and exploitation works, on grounds of breach of their right to prior consultation, participation and collective ownership; but the complaint failed. With regard to the mining concession in the municipality of Acandi, the USO reports that the Environmental Alternatives Diagnosis is being conducted and that according to the Ministry of Environment, Housing and Territorial Development, “prior consultation is not required” as regards this study. The Committee would point out to the Government that according to Articles 6, 7 and 15 of the Convention, the peoples concerned must participate and be consulted regarding environmental impact studies. The Committee again urges the Government to take steps as a matter of urgency to put an end to all intrusion in the lands of the Embera Katío and Embera Dóbida peoples and to suspend exploration and exploitation activities and implementation of infrastructure projects affecting them, pending full compliance with Articles 6, 7 and 15 of the Convention. It also repeats its requests to the Government to take steps to join the three plots of the Chidima reservation into one in so far as there has been traditional occupation of the land and to guarantee effective protection of the rights of ownership and possession of the peoples concerned, in accordance with Article 14(2) of the Convention.

Embera Katío people of Alto Sinú. The Committee recalls that the case of the Embera Katío people of Alto Sinú was examined by the Governing Body in connection with the construction, without consultation, of the Urrá I hydroelectric dam in a report adopted in 2001 (document GB.282/14/4). In that report, the Governing Body recommended that the Government maintain dialogue with the Embera Katío people in a climate of cooperation and mutual respect, in order to seek solutions to the situation that this people was going through and that it provide information in particular on measures taken to safeguard the cultural, social, economic and political integrity of this people, prevent acts of intimidation or violence against its members and compensate them for the losses and damage suffered. The Committee notes with regret that according to the ITUC’s communication of 2009, there has been no compensation for the damage caused to the Embera Katío people by the Urrá I dam, and that, in 2008, a project for the construction of a new dam on their territory was submitted. The ITUC indicates that in June 2009, the Ministry of Environment turned down the application for an environmental licence for the project but that the risk that projects for the exploitation of environmental resources will be imposed remains latent. It further indicates that the people’s traditional authorities have reported an ever-growing military presence on their territory since 2007 and that this is involving the community directly or indirectly in armed conflict. It further alleges that the protection machinery set up to safeguard the lives and personal safety of the members of the community has grown gradually weaker and that in the last few years there has been a serious decline in the situation regarding security and guarantees. The Committee refers to its earlier comments and requests the Government to guarantee the right of the Embera Katío people to decide their own priorities for the process of development and participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly, in accordance with Article 7 of the Convention.

Mandé Norte project. The Committee notes with concern the communication sent by SINTRAMINERCOL in 2009, alleging that the Embera people in the Urada Jiguamiandó reservation are in imminent danger of forced displacement due to the implementation, without consultation, of the Mandé Norte mining project, the militarization of their land, the threat of armed conflict and the invasion and disregard of their holy places by the armed forces.

SINTRAMINERCOL indicates that the Colombian Institute of Agrarian Reform (INCORA) issued Resolution No. 007 of 2003 establishing a reservation for the Embera Dóbida community covering a total area of 19,744 hectares consisting of two plots of unplanted land that form part of the Pacific Forest Reserve. In 2005, a licence was granted for the technical exploration and economic exploitation of a copper, gold and molybdenum mine in an area of approximately 16,000 hectares for a period of 30 years, renewable for a further 30 years. Of these 16,000 hectares, the areas located in the municipality of Carmen del Darién, amounting to 11,000 hectares, are traditional lands and the reserve of the indigenous Embera people of Urada Jiguamiandó. Overall, the project affects more than 11 indigenous communities, two Afro-Colombian communities and an unspecified number of peasant communities. The organization adds that the indigenous and Afro-Colombian communities were not consulted before the mining contracts were signed. For the exploration phase, consultation was carried out by the Working Group on Prior Consultation of the Ministry of the Interior and Justice and the procedure was challenged by the indigenous and Afro-Colombian authorities on the grounds that the persons with whom the consultation was planned, agreed on and endorsed, were not legitimate representatives of the communities. Furthermore, it was when the activities to implement the project began that military personnel started to move in to the River Jiguamiandό Basin. According to SINTRAMINERCOL, since January 2009, the licence holder has been engaged in a campaign to discredit the communities and their leaders and support organizations and to invalidate their legitimacy. The Committee notes that the USO’s communication of 2009 makes the same allegations regarding the Afro-Colombian community of Jiguamiandό, which is likewise affected by the project.

The Committee points out that the principle of representativeness is an essential component of the requirement to consult laid down in Article 6 of the Convention. As the Governing Body noted in another case, if an appropriate consultation process is not developed with the indigenous and tribal institutions or organizations that are truly representative of the communities affected, the resulting consultations will not comply with the requirements of the Convention (document GB.282/14/2, paragraph 44). The Government is therefore bound to ascertain that the consultations are held with the institutions that truly represent the peoples concerned before any programme for prospecting or exploiting their lands is undertaken. The Committee further observes that a climate of mutual trust is essential to any consultations if a genuine dialogue between the parties is to be established so that appropriate solutions can be sought to the problems at hand, as the Convention requires. The Committee further considers that the militarization of the area where the project is being carried out and the campaigns to discredit and deny the legitimacy of the communities, their leaders and support organizations are not consistent with the basic requirement that consultations must be genuine. It points out that the obligation to consult should be viewed in the light of the fundamental principle of participation set forth in Article 7(1) and (3) of the Convention. The Committee urges the Government to:

(i)    suspend activities related to the implementation of the Mandé Norte project until it has ensured the participation and consultation of the peoples affected through their representative institutions in a climate of full respect and trust, in accordance with Articles 6, 7 and 15 of the Convention;

(ii)   take the necessary steps to put an end to the climate of intimidation; and

(iii) conduct studies, in cooperation with the peoples concerned, to assess the impact of the abovementioned project, in accordance with Articles 7(3) and 15(2), of the Convention, bearing in mind the obligation to protect the social, cultural and economic integrity of the peoples, in accordance with the spirit of the Convention.

Please provide full information on the measures taken to these ends.

The Awa people. Noting the Ombudsperson’s Resolution No. 53 of 2008 which refers to threats, harassment, disappearances and killings of members of the Awa people, as well as the recent statement by the Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people, condemning the killings of members of the Awa people on the morning of 25 August 2009 in the department of Nariño, the Committee requests the Government to provide full information on the situation of the Awa people and the measures taken in response to the Committee’s previous comments.

Consultations. Legislation. The Committee recalls that in two reports it issued on representations in 2001, the Governing Body found Decree No. 1320 of 1998 to be inconsistent with the Convention in terms both of the adoption process, which did not involve consultations, and of its content, and accordingly asked the Government to amend it in order to align it with the Convention, in consultation with and with the active participation of the representatives of the indigenous peoples of Colombia (documents GB.282/14/3 and GB.282/14/4). The Committee also recalls that the Constitutional Court of Colombia, in judgement No. T-652 of 1998, suspended application of the abovementioned Decree in the specific case of the indigenous communities of Embera Katío of Alto Sinú because the Decree was inconsistent with the Constitution of Colombia and the Convention. The Committee further notes that on several occasions the Constitutional Court has been exemplary in identifying problems regarding the holding of prior consultations with the communities concerned, on the latest occasion in judgement C-175/09 of 18 March 2009 on the adoption of Act No. 1152 of 2007 (Rural Development Statute), which the Court found to be unenforceable on grounds of non-compliance with the requirement for prior consultation. The Committee notes from the information supplied by the Government in its report that the Working Party on Prior Consultation of the Ministry of the Interior and Justice, established by Resolution No. 3598 of 2009, has drafted a statute to regulate the consultation process. The Committee notes with regret that this bill was not the subject of any consultations or process of participation with the indigenous and tribal peoples. It further notes with concern that, according to the abovementioned communication, the content of the bill has not eliminated the problems of Decree No. 1320 and does not envisage consultation as a process of genuine negotiation between the parties involved.

The Committee urges the Government to ensure that the participation and consultation of indigenous peoples is established in the abovementioned provisions that are to regulate the consultation process and refers the Government to the recommendations made by the Governing Body in the two reports mentioned above regarding the fundamental requirements to be observed as to content. The Committee encourages the Government to seek technical assistance from the Office on this matter and asks it to provide a copy of the abovementioned draft regulations.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to report in detail in 2010.]