CMNT_TITLE

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Ecuador (RATIFICATION: 1998)

1. The Committee notes with interest the Government’s first report, and the documentation attached. It also refers to its observation, in which it requests the Government to provide further information in its next report on the application of the Convention in practice.

2. Article 1 of the Convention. The Committee notes that the peoples covered by the Convention are, in accordance with article 83 of the Constitution, the indigenous peoples, who are defined as nationalities of ancestral origin, and the black and Afro-Ecuadorian peoples. The Committee would be grateful if the Government would indicate the total number of indigenous persons in Ecuador, as well as the number of indigenous persons in each region and by people, according to the latest census carried out. Please also indicate whether self-identification as indigenous of the persons covered by the census was taken into account in determining their ethnic origin.

3. Articles 2 and 33. The Committee notes that the Council for the Development of the Nationalities and Peoples of Ecuador (CODENPE) is the link between the Government and indigenous nationalities and peoples and that this Council is registered with the Office of the President of the Republic and is entrusted with implementing indigenous policies, plans and programmes, and is also the Government counterpart in the Project for the Development of Indigenous and Black Peoples in Ecuador (PRODEPINE). Also noting an initiative to establish an indigenous fund, the Committee requests more detailed information on this initiative. It further notes that various ministries and government bodies have mandates dealing with indigenous affairs, such as the Indigenous Health Directorate of the Ministry of Health, and that these mandates are coordinated with the CODENPE. Please provide information on any change in relation to the entities established by the Government with responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and for guaranteeing respect for their integrity.

4. The Committee notes that PRODEPINE is a project financed by the World Bank up to 2002 for the development of indigenous and black peoples, and that its financing of US$50 million has been allocated exclusively to indigenous organizations. The Committee would be grateful if the Government would provide information on the objectives of PRODEPINE, the various programmes of which it is composed, the results achieved at the time of the conclusion of the project and whether and in what manner it will be continued. Please indicate how the peoples concerned have been associated in the development of the project with an indication, for example, of whether they were consulted and, if so, of the manner in which their proposals were taken into account.

5. The Committee notes articles 83 to 85 of the Constitution, which set forth the collective rights of indigenous and black or Afro-Ecuadorian peoples. It notes in particular article 84(13), under the terms of which these peoples have the right to determine priorities in plans and projects for the development and improvement of their economic and social conditions, and to appropriate financing from the State. Please indicate whether regulations have been issued under this article and machinery established for the implementation, in a coordinated and systematic manner, of the right to determine priorities in the situations referred to above. Please also provide a copy of any draft legislation or any legislation adopted for this purpose, in conformity with Article 33, paragraph 2(b), of the Convention.

6. Article 3. The Committee notes that indigenous peoples participated in the formulation of the National Human Rights Plan, 1998, to which more detailed reference will be made below.

7. Article 4. The Committee notes that article 84(1) to (6) of the Constitution covers in general terms the rights set out in paragraph 1 of this Article of the Convention. The Committee would nevertheless be grateful if the Government would provide information on the application in practice of the special measures adopted, as set out in the Convention, for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned. Noting the Operational Action Plan, 1999-2003, on the rights of indigenous nationalities and peoples in Ecuador (annexed to the National Human Rights Plan), the Committee notes with interest that it proposes the creation of a permanent committee on the rights of indigenous nationalities and peoples in Ecuador, which is to submit a document in the first quarter of 2003 reviewing current and/or completed action carried out under the above Plan. Please indicate whether this committee has been created and, if so, provide information on the activities that it has carried out, with a copy of the document referred to above and any other relevant documentation prepared by the committee.

8. Article 5. The Committee notes that article 84(1), (10) and (12) of the Constitution, sets forth the right of the peoples concerned to maintain, develop and strengthen their identity and traditions and their cultural and historical heritage. Please indicate the manner in which these rights are being applied in practice and whether the wishes of the peoples concerned are taken into account for this purpose.

9. Article 6. The Committee notes that consultations with indigenous communities are held essentially through CODENPE. Please provide information on the manner in which such consultations are held in practice and the subjects covered, for example, over the past two years. It also notes that, according to the report, in view of the recent entry into force of the Convention, appropriate procedures have still not been developed to determine the representativity and the manner in which indigenous peoples are to be consulted with regard to the mandate of the Convention, but that this will be put into practice in the future. The Committee would be grateful if the Government would provide information on the measures adopted, the progress achieved and the difficulties encountered in the application of this Article, which is fundamental for the proper implementation of the Convention.

10. In its last comment (1995) on the application of the Indigenous and Tribal Populations Convention, 1957 (No. 107), with reference to Article 5 of that Convention, the Committee noted that the Government’s report had been communicated to the Confederation of Indigenous Nationalities of Ecuador (CONAIE) and the Confederation of Indigenous Nationalities of the Ecuadorian Amazon (CONFENAIE) and expressed the hope that the Government would continue to communicate its subsequent reports to these organizations. Noting that the present report has not been sent to the principal indigenous organizations, the Committee would be grateful if the Government would indicate whether it will continue communicating its reports to the most representative indigenous organizations.

11. Article 7. The Committee notes that the action proposed under the Operational Action Plan, 1999-2003, includes the multiplication and strengthening of autonomous political and administrative units (action 1.1), the recognition of the political competence of the various forms of organization of indigenous nationalities (action 2.1), the formulation of a basic law on indigenous peoples and nationalities (action 2.4), the proposal to formulate a law on indigenous areas with a view to ensuring that indigenous nationalities and peoples benefit from the space required to ensure their own existence (action 3.1), and the enactment of laws protecting indigenous areas (action 3.2). Noting that the implementation of these measures would contribute significantly to the exercise of the right to decide their own priorities for the process of development, as required by the Convention, the Committee requests the Government to provide information on the implementation and results of the Plan of Action with regard to the above points.

12. The Committee hopes that the Government will provide information on the manner in which the PRODEPINE project and other projects take into account and apply the criteria set out in paragraphs 2 and 3 of this Article of the Convention. Please also indicate the manner in which the peoples covered by the Convention have been involved with measures to protect and preserve the environment of the territories they inhabit.

13. Articles 8 to 10. The Committee notes that, by virtue of article 191 of the Constitution, the authorities of indigenous peoples shall exercise functions relating to the administration of justice, applying their own standards and procedures for the settlement of internal disputes in accordance with their customs and customary law, provided that they are not contrary to the Constitution and the laws, and that the law shall make these functions compatible with those of the national judicial system. The Plan of Action also takes up this provision in action 2.6. Please provide information on the progress achieved in the implementation of this article of the Constitution, and also indicate the manner in which the authorities of the indigenous peoples which are to discharge these functions are determined. Noting that, by virtue of section 7(2) of the Code of Minors with regard to disputes relating to minors belonging to ethnic minorities or indigenous communities, their customs and traditions shall be observed and the traditional authorities of the community to which the minor belongs shall be consulted, the Committee requests the Government to provide examples of cases in which this provision has been applied.

14. Noting that penal law is the same for all, as are the channels of recourse for the observance of rights, the Committee hopes that the Government will adopt initiatives ensuring that the authorities and courts dealing with penal matters take into account the customs of the peoples concerned, in accordance with Article 9, paragraph 2, of the Convention.

15. Article 14. The Committee notes that the peoples concerned have the right, by virtue of article 84(2) of the Constitution, to maintain the imprescriptible ownership of community lands, which may not be alienated, seized or divided, except for the power of the State to declare them to be of public utility, and that by virtue of paragraph 3, they have the right to retain the ancestral possession of community lands and to obtain their adjudication free of charge in accordance with the law. With regard to the issue of declaring community lands of public utility, please provide information on cases which have occurred during the period covered by the report and on the procedure and manner in which the peoples concerned are taken into account in such cases.

16. The Committee notes the statement in the report that the peoples of the Amazon and the forest-dwelling peoples hold their land by virtue of ancestral possession, family ownership, private ownership, community ownership and latifundium. However, it notes that in the sierra, the most common form of land ownership is small estates under community, family and private ownership, as well as privately possessed lands. In its comments made in 1995 on the application of Convention No. 107, the Committee noted that 1,158,651 hectares had been adjudicated to 11,192 indigenous families. Noting that Executive Decrees Nos. 551 and 552 of 1999 adjudicated land free of charge to various communities, the Committee requests the Government to provide information on the total area of land to which title has been adjudicated by the end of the period covered by the next report. Noting that recognition of ancestral ownership can be obtained by application to the National Institute of Agrarian Development (INDA) or through the Ministry of Agriculture and Livestock (MAG), the Committee requests information on the procedures to be followed, the difference between the two procedures and whether the Government has taken initiatives during the period covered by the next report to demarcate and adjudicate title to the lands covered by article 84(2) and (3) of the Constitution. The Committee would be grateful if the Government would provide a map indicating the total area of lands demarcated and to which title has been adjudicated, as well as those where it has not yet been adjudicated. With regard to nomadic groups, it notes that according to the report the Tagaeri, the Taroname and other groups with family links to the Huaorani living to the south of the lands adjudicated to the Huaorani and the Yasuni Park may be considered nomadic and that Decree No. 552 recognizes their lands. Please indicate any other adjudication to the benefit of nomadic peoples. The Committee would be grateful if the Government would provide information on any exploitation of oil in the lands of the Sarayacu community and the manner in which effect is given in this case to Articles 14 and 15 of the Convention, in light of Articles 6 and 7.

17. In its last comment on the application of Convention No. 107, the Committee requested the Government to provide information on a communication from the Central Ecuatoriana de Organizaciones Clasistas (CEDOC) alleging that the provisions of the Peasant Communities Act were not compatible with other national laws, particularly with regard to the juridical status of peasant communities in relation to the possession, ownership and demarcation of communal lands. The Government has never replied to this observation. Please indicate whether the Peasant Communities Act is still in force and provide information on the other points raised in the communication.

18. Article 15. The Committee notes that, under the terms of article 84(4) of the Constitution, indigenous peoples have the right to share in the use, exploitation, administration and conservation of renewable natural resources situated in their lands. Please indicate the manner in which this right is exercised in practice, particularly during the period covered by the next report. The Committee also notes that Executive Decrees Nos. 551 and 552 of 29 January 1999 declared the area known as Cubayeno Imuya, an untouchable conservation area prohibited for any type of extractive activity, but that this area includes the Imuya oil exploration zone and the Zabalo I and Siona oil wells. Please provide a copy of these legislative texts and of the Environment Act, with an indication as to whether other declarations of this nature have been made during the period covered by the next report.

19. The Committee notes that article 84(5) of the Constitution sets forth the right of these peoples to be consulted concerning plans and programmes of exploration and exploitation of non-renewable resources found in their lands and which may affect their environment and culture, to share in the benefits from these projects where possible and to receive compensation for the socio-environmental damage caused. In this respect, the Committee requests the Government to keep it informed of the consultation machinery established in relation to the content of this article and whether exploration and exploitation of non-renewable resources in indigenous lands have been carried out during the period covered by the report, the manner in which consultations were held and their outcome. Please also indicate whether profits were made and/or compensation paid as a result of such activities.

20. Article 16. Noting that article 84(8) of the Constitution sets forth the right of indigenous persons not to be displaced as peoples from their lands, the Committee notes that, according to the report, up to now there have not been any cases of displacement, transferral or relocation of either indigenous or non-indigenous persons. In paragraph 28 of its last comment on Convention No. 107, the Committee requested the Government to provide information on the measures that it had adopted or planned to adopt relating to the possible relocation of the Cofanes, Siona and Secoya and on the activities undertaken to resolve land-related disputes between indigenous communities and non-indigenous settlers. Noting that, according to the report, Decrees Nos. 551 and 552 declared the area known as Cubayeno Imuya and the Zabalo I and Siona oil wells untouchable areas in which any type of extractive activity is prohibited, the Committee notes that, while it would appear that the Siona may have benefited, it is not clear whether these Decrees in practice cover the Cofanes, Siona and Secoya. It therefore repeats its request for information on the measures adopted in favour of these peoples and any other information relating to any transfers of individuals or groups of individuals belonging to these peoples.

21. Article 17. The Committee, noting that the legislation only recognizes forms of transmission set out in the Civil Code, which does not envisage the transmission procedures established by the peoples covered by the Convention, nevertheless notes with interest that indigenous peoples are preparing legislative proposals on communities and on self-defined peoples and nationalities recognizing and setting out in law traditional transmission procedures. The Committee hopes that the Government will be able to provide detailed information on this subject in its next report and that it will take the necessary measures to give effect to paragraph 1 of this Article.

22. Article 18. The Committee notes that the procedures and action against unauthorized intrusion on the lands of the peoples concerned are those which usually protect private property and are fully applicable in respect of the requirements of the Convention. Please provide information on these procedures, the sanctions prescribed and whether action has been taken against this type of intrusion during the period covered by the report, as well as any decisions and penalties resulting from such action.

23. Article 19. The Committee notes that the Act on agrarian development and the provisions relating to the organization and status of rural communities apply in general to the various agrarian programmes. It notes with interest that the Act on agrarian development provides that two members of the Executive Board of the INDA shall be representatives of national organizations of indigenous persons, montubios, Afro-Ecuadorian persons and persons living in rural areas in general (section 29.6) and that it covers the adjudication of lands to the persons concerned (section 38) and the training of indigenous persons and the development of ancestral techniques (sections 4 and 5), among other matters. According to the Government’s report, various agrarian programmes are carried out by institutions of different types, state bodies, non-governmental organizations and indigenous initiatives. Please indicate the main programmes that are under way and the measures envisaged to give effect to this Article in accordance with the indications contained in the report form.

24. Article 20. The Committee notes the information provided in the Government’s report to the effect that the labour legislation applies without distinction to all Ecuadorian nationals and that special measures have not been taken relating to the recruitment and conditions of employment of indigenous and Afro-Ecuadorian peoples. The Committee recalls that in its comments made in 2001 on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), it recalled that it had been noting for years that, despite the efforts to eliminate racial discrimination, it still exists in practice. It notes with concern that 80 per cent of the indigenous population in Ecuador is below the vulnerability line and that their consumption is insufficient to provide for their basic needs. The Committee therefore considers that the measures referred to in this Article are necessary and requests the Government to provide detailed information on the situations covered by points (a), (b), (c) and (d) ofparagraph 3 of Article 20 of the Convention, including in so far as possible, statistics on the categories of workers concerned. Please indicate, for example, the number of internal indigenous migrants, their conditions of work and the manner in which it is ensured that they are not exposed to pesticides or other toxic substances. With regard to paragraph 3(a), the Committee notes that action 15.1 of the Operational Plan of Action, 1999-2003, proposes the establishment of centres to receive and guide indigenous migrants which would operate in the major cities and, among other matters, would warn them of employment risks and provide information on employment, social security, housing and health. Please provide information on the measures adopted to give effect to action 15.1 of this Plan.

25. Article 20, paragraph 4. The Committee notes that labour inspection is carried out by the usual branches of the inspectorate within the context of their activities. In its observation of 2001 on the application of the Labour Inspection Convention, 1947 (No. 81), the Committee noted with interest that an awareness-raising campaign had been initiated on child labour with the support of the International Programme for the Elimination of Child Labour (IPEC), and that training programmes for labour inspectors on child labour are currently being commenced and arrangements are being made to obtain information in this respect. It also notes that in mid-September 2001, an overall training process was due to begin for labour inspectors and that the Government planned to adopt measures, with assistance from international cooperation, for the occupational specialization of labour inspectors. The Committee considers that to give effect to this provision of the Convention, the Government should include in the training of labour inspectors components to raise their awareness of the special vulnerability of indigenous peoples and Afro-Ecuadorian communities and the rights contained in this part of the Convention. It hopes that in its next report the Government will be able to provide information on the measures adopted in this respect.

26. Articles 21 to 23. The Committee notes the information of a general nature provided by the Government and requests it to provide more detailed information on this subject, including the plans and programmes that are under way and the number of persons and communities which have benefited from them. The Committee would also be grateful for information on the agrarian training plans for indigenous persons carried out under sections 4 and 5 of the Act on agrarian development.

27. Article 24. Noting that the rural social security scheme is of national coverage and includes indigenous peoples, the Committee requests the Government to provide information on the requirements for coverage by this scheme and the percentage of indigenous persons covered by it.

28. Article 25. The Committee notes that, according to the Government, there is no detailed information available on the number of health centres existing in regions inhabited by indigenous peoples, and the size of their medical, paramedical and nursing staff, which would make it possible to gain a better idea of the manner in which this Article is applied. It hopes that the Government will supply this information with its next report.

29. Articles 26 to 28. The Committee notes that article 84(11) of the Constitution sets forth the right of the peoples concerned to have access to quality education and to be provided with a system of bilingual intercultural education, and that by virtue of Executive Decree No. 203 of 1998, the National Directorate of Bilingual Intercultural Indigenous Education was created and made responsible for the administration of such education and the development of an appropriate curriculum. In this respect, the Committee notes the Bilingual Intercultural Education Model setting out the aims, objectives, strategies and proposed programmes, and that bilingual intercultural indigenous education started functioning 12 years ago in the country. It also notes with interest that the system was institutionalized on the basis of a proposal by CONAIE.

30. The practical information provided by the Government on education centres was taken from the Bilingual Intercultural Indigenous Education Statistical Yearbook for 1998, but does not offer a clear view of how it relates to the Convention. It indicates, for example, that there are 1,730 primary education centres and a total of 9,327 pupils, which does not appear to be proportionate. Please indicate, by region and by people, the literacy rates by age of the various indigenous peoples and of the children attending school, and up to which level, as well as the remaining information requested in the report form, with an indication, in so far as possible, of the literacy and school attendance rates of the non-indigenous population. Please also indicate the literacy and school attendance rates of the Afro-Ecuadorian population, with an indication of the educational level that they have attained.

31. Article 32. The Committee notes that the Awa and Espera peoples are located in the north of Ecuador and the south of Colombia and that the Shuar live on both sides of the frontier with Peru. In this respect, the Committee notes that, with a view to the completion of the pacification process between Ecuador and Peru, a frontier development agreement was concluded in 1999 and that family members who have been separated for decades may once again be reunited. Please provide information on the activities in the economic, social, cultural, spiritual and environmental fields envisaged by this agreement and any other agreement relating to indigenous peoples which may have been concluded with Colombia and Peru.

32. Part IV of the report form. Please state whether ordinary courts of law or other tribunals have issued decisions involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.