Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

Convention (n° 169) relative aux peuples indigènes et tribaux, 1989 - Equateur (Ratification: 1998)

1. The Committee notes with interest the Government’s first report, which it will examine in a direct request. It nevertheless notes that the report received refers almost exclusively to legislative texts, and it requests the Government to provide more complete information on the situation in practice in its next report.

2. It notes the report submitted to the Governing Body by a tripartite committee set up to examine a representation made by the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL) alleging non-observance by the Government of Ecuador of certain provisions of the Convention. This report was adopted by the Governing Body in November 2001 (document GB.282/14/2).

3. The representation alleged principally the failure to hold consultations through appropriate procedures, and particularly through the representative institutions of the Shuar people in relation to the granting of contracts by which the State delegated to individual contractors the right to carry out oil exploration and exploitation activities. The tripartite committee found, among other conclusions, that Articles 2, paragraphs 1 and 2(b), 6, 7 and 15, paragraph 2, of the Convention imply the obligation to develop a process of prior consultation with the indigenous peoples of the country before taking measures that might affect them directly, such as the exploration or exploitation of hydrocarbons, which may affect indigenous communities. Noting that the oil companies held consultations only with certain groups of the Shuar with a view to obtaining their consent to oil exploration, the tripartite committee also pointed out that the principle of representativity is a vital component of the obligation of consultation. The Governing Body therefore: (a) requested the Government to apply fully Article 15 of the Convention; that it establish prior consultations in cases of exploration and exploitation of hydrocarbons that could affect indigenous and tribal communities; and that it ensure the participation of the peoples concerned in the various stages of the process, as well as in environmental impact studies and environmental management plans; and (b) urged the Government, in seeking solutions to the problems that still affect the Shuar people as a result of the oil exploration and exploitation activities in the zone of "Block 24" (when this case arose), to contact the representative institutions or organizations, including the Independent Federation of the Shuar People of Ecuador (FIPSE), for the purpose of establishing and maintaining a constructive dialogue which will allow the parties concerned to find solutions to the situation facing this community.

4. Further to the recommendations of the tripartite committee, the Committee of Experts requests the Government to report in detail on the effect given to the recommendations of the tripartite committee, and in particular on: (1) the measures taken or envisaged to remedy the situations that gave rise to the representation, taking into account the need to establish an effective mechanism for prior consultation with indigenous peoples, as provided in Articles 6 and 15 of the Convention, before undertaking or authorizing any programme for the exploration or exploitation of the resources pertaining to their lands; (2) the measures taken or envisaged to ensure that the required consultations are carried out in compliance with the provisions of Article 6, particularly as regards the representativity of the indigenous institutions or organizations consulted; and (3) the progress achieved in respect of consultations for the peoples situated in the zone of "Block 24", including information on the participation of these peoples in the use, administration  and conservation of said resources and in the benefits from the oil-producing activities, as well as their perception of fair compensation for any damage caused by exploration and exploitation in the zone. The Committee regrets that, despite the fact that the Government provided a brief second report on the Convention, which was received in September 2002, it does not contain information on the recommendations approved by the Governing Body, and it requests the Government to provide this information in its next report.