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

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Guatemala (Ratification: 1996)

The Committee recalls that in its previous comments it did not take into consideration the Government’s report, as it was received late, and that it is therefore examining it in the present direct request, together with the most recent report.

Article 1 of the Convention. The Committee notes that, according to the Government, harmonized criteria for statistical data were in the process of being established and a policy was being implemented to present statistics disaggregated by ethnic group and gender throughout the entire public administration. The Government considers that currently the proportion of the population covered by the Convention is about 42 per cent, which corresponds to the percentage of the population that identified itself as being indigenous in the 2002 census. The Committee requests the Government to continue to provide information on the development of criteria for identifying statistical data disaggregated by ethnic group and gender for the peoples covered by the Convention, and once again asks it whether the Convention covers non-Garífuna peoples of African extraction, with an indication of how their representation in public institutions is secured.

Articles 2, 6, 7 and 33. The Committee notes that the Advisory Council on Indigenous Peoples and Plurality (CAPIP) of the Offices of the President and Vice-President of the Republic referred to as the Indigenous Advisory Council (CAI) in the previous report, counsels and advises on public policy; that the objective of the Committee for the Inclusion of Indigenous Peoples, attached to the executive, was to include 300 representatives of indigenous peoples, but that this had been impeded by budgetary constraints, the result being the inclusion of 51 indigenous representatives in decision-making posts and 150 in posts of lesser responsibility. It notes that, according to the report, in the context of round tables for dialogue with indigenous peoples, political agreements were adopted, applying legislative provisions, to mitigate the impact of racism and discrimination, ensure the participation of indigenous peoples and respect for their rights, and promote sustained economic development and production. The Committee notes that these agreements could constitute a step forward towards participatory development, in the spirit of Article 7 of the Convention by virtue of which the indigenous peoples concerned have the right to decide their own development priorities. For this to occur, it is essential for indigenous peoples to be able to choose their representatives without any interference whatsoever and particularly that they participate through their own representative institutions as set out in Article 6. The Committee requests the Government to indicate the manner in which indigenous representation is secured in the CAPIP, the Committee for Inclusion and the round tables for dialogue, indicating particularly the manner in which representatives of indigenous peoples are designated. Please also provide information on the implementation and results achieved of the agreements adopted through the round tables.

Article 3. Non-discrimination. The Committee notes the training, awareness-raising and dissemination activities carried out by Presidential Coordinating Committee on Human Rights Policies of the Executive (COPREDEH) and Presidential Committee against Discrimination and Racism in Guatemala (CODISRA), in particular the strategies to attract private initiatives being implemented by CODISRA. The Committee hopes that the Government will continue to provide information on such activities and strategies and on their impact in practice.

Article 4. Documentation of indigenous persons. The Committee notes that a documentation campaign for indigenous persons has been carried out, but that the Government did not have any statistics on the beneficiaries. The Committee asks the Government whether it has studies on or estimates of the number of indigenous persons still undocumented and on the measures being envisaged to resolve this matter.

Article 8. Administration of justice. The Committee notes that a theoretical framework for focusing on culturally relevant cases was being formulated for the Public Criminal Defence Institute, 120 indigenous university students were being trained to increase the number of indigenous lawyers, 100 indigenous public defenders were being trained as well as other judicial workers, and that training and awareness raising on inter-culturality was being provided to 324 Public Criminal Defence Institute employees. The Committee also took note of a number of criminal cases in which, after it had been ascertained that the accused were indigenous and indigenous law had been requested, invoking the Convention, no sanctions whatsoever had been imposed, as the compensation and reparation provided by the accused and their relatives in accordance with local customs had been considered sufficient. The Committee notes that in these cases, customs and customary law had been respected. The Committee requests the Government to continue to provide information on this matter.

Legislation respecting lands and consultation

Land Registry Information Act (RIC) and Bills. The Committee notes that, according to the report, it is not yet possible to indentify the specific beneficiary communities of the Act since the results up to now are of a general nature. The Land Information Register (RIC) has not yet finalized the registry of lands in any of the areas in which it has undertaken projects. The Government indicates that progress will be made in applying the Land Registry Information Act after adoption of the Regulation on Communal Lands, which were the subject of consultations through workshops. The Government also refers to the formulation of the Land Tenure Act and indicates that this matter is being coordinated by the Secretariat on Agrarian Affairs, which has formed a committee to work on this project. The Government indicates that this committee has produced an initial draft which will be presented and discussed with various sectors of Guatemalan society. The Committee emphasizes that consultations, pursuant to the Convention, need to be carried out according to appropriate procedures and in particular through the representative institutions of indigenous peoples, undertaken in good faith and with the objective of reaching agreement or achieving consensus, in accordance with Article 6 of the Convention. Procedures considered to be appropriate are those that generate conditions conducive to reaching an agreement or achieving consensus on the measures being proposed. There is no unique procedural model, though the circumstances of the indigenous peoples concerned as well as the nature of the measures subject to consultation need to be taken into account. With regard to the procedure to be adopted, the views of the various groups that will participate in the consultation should be taken into account so as to ensure that the procedure used is considered appropriate by all parties. The Committee asks the Government to provide information on procedures established and consultations undertaken with indigenous peoples with regard to the draft Regulation on Communal Lands and the draft Land Tenure Act. The Committee also requests the Government to provide information on the status of the land registry process, and of the indigenous communities that have benefited from it, including those who occupy or otherwise use the land.

Agrarian policy. The Committee notes that the entity that coordinates national agrarian policy is the Secretariat on Agrarian Affairs. The Committee requests the Government to provide information on the following points:

(i)    the manner in which it is determined which indigenous lands are referred to in section 45 of Act No. 24-99 respecting the land fund FONTIERRA so as to ensure that lands of indigenous communities are excluded from its scope of application; and

(ii)   the manner in which FONTIERRA applies Articles 14(1) and (2) of the Convention in certain cases involving the regularization of land tenure.

Conflicts. The Committee also notes the information provided by the Government on the number of conflicts linked with disputes over land. Moreover, in its 2007 observation, the Committee noted that in June 2007, the Governing Body had approved the report on the representation presented under article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC), alleging the non-observance of certain provisions of the Convention (GB.299/6/1), in which a critical aspect mentioned by the parties was the legal situation regarding lands. The Committee notes the persistence of conflicts regarding land rights and emphasizes the importance of resolving them in conformity with Article 14 of the Convention. It recalls that, in paragraphs 46 and 60 of its report, the Governing Body requested the Government to speed up the process of the regularization of title to the lands of indigenous communities in accordance with Article 14 of the Convention and in the meantime to adopt transitional measures to protect the land rights of the peoples concerned in consultation with indigenous peoples. The Committee therefore urges the Government to adopt all the measures necessary to apply the recommendations of the Governing Body, in particular, the Committee requests the Government to provide detailed information regarding the measures taken or envisaged, in consultation with indigenous peoples, to guarantee the rights of ownership and possession of indigenous peoples over the lands referred to in Article 14 of the Convention and to protect these rights while the process of the regularization of title to lands is being completed.

Article 20. Recruitment and employment conditions. The Committee notes the information provided by the Government in the report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50) and the Contracts of Employment (Indigenous Workers) Convention, 1939 (No. 64). The Committee has examined the reports under Conventions Nos 50 and 64 in the context of the present Convention, thereby fulfilling its obligation to analyse the Government’s implementation of the above instruments. Conventions Nos 50 and 64 had been adopted in connection with indigenous workers in territories that were dependent and the Governing Body had decided that these instruments were out of date. The Committee, as had been suggested previously by the Governing Body, requests the Government to consider denouncing these Conventions when the opportunity presents itself. The Committee requests the Government to continue to provide information in its next report on the measures adopted to ensure that indigenous workers, including seasonal, temporary and migrant workers employed in agriculture, are not subject to hiring and working conditions that are exploitative and abusive. Please provide full particulars on the measures taken to ensure the effective controls by the employment agencies and the labour inspectorate.