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

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Article 1 of the Convention. Peoples covered by the Convention. Self-identification. In its previous comments, the Committee noted that the Directorate for Indigenous, Roma and Minorities Affairs (DAIRM) was responsible for keeping the registry of peoples covered by the Convention. The Committee requested the Government to provide information on this matter and on the self-censuses of indigenous peoples. In its report, the Government states that, from 2013 to September 2018, a total of 3,416 censuses have been uploaded into Colombia's indigenous information system. The Government indicates that, in September 2014, the DAIRM issued a circular with instructions for indigenous authorities and/or councils on carrying out censuses. The DAIRM defines the indigenous self-census as an autonomous exercise carried out by indigenous authorities through census lists in order to establish the social composition of their communities, and the periodical developments on account of births, deaths, migration and marriages. In this process, the governing council of each reservation and community or group is responsible for the self-census and its supervision. The Committee requests the Government to provide updated statistical data on the number of persons belonging to peoples covered by the Convention, disaggregated by sex, age, people and geographical location, as well as examples of self-censuses, indicating how they are used. The Committee refers to its general comment 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 public policies, and encourages the Government to provide information in this regard.

Article 4. Protection of the rights of indigenous peoples in isolation. The Committee notes with interest the adoption of Decree No. 1232 of 17 July 2018 establishing the National System for the prevention and protection of the rights of indigenous peoples living in isolation or natural conditions. The objectives of the system include developing and implementing measures to protect the rights of peoples in living isolation, by ensuring the participation of indigenous peoples in surrounding areas, and strengthening the competent public institutions. Under the system, the National Committee for the prevention and protection of the rights of indigenous peoples living in isolation has been established, whose objective is to guide the development of strategies for the planning and management of the system and which is composed of various governmental department employees, indigenous members of the Standing Dialogue Forum and indigenous representatives of civil society organizations. The Committee requests the Government to provide information on the protective measures adopted by the National System for the prevention and protection of the rights of indigenous peoples living in isolation, indicating how it ensures that such a system has the means and resources necessary to achieve its objectives.

Article 7. Development. The Committee notes the adoption of Act No. 1955 of May 2019, which sets out the National Development Plan 2018–2022, “Pact for Colombia, Pact for Equity”. The Plan aims to lay the foundations of legality, entrepreneurship and equity for the achievement of equal opportunities for all Colombians. The Plan consists of public policy objectives known as “pacts”, including the Pact for equality of opportunity among indigenous, Black, Afro-descendant, Raizal, Palenquero and Roma groups. According to information from the National Planning Department, the objectives of the Pact are to increase comprehensive care for children of ethnic origin, from early childhood to adolescence; improve access and health outcomes for ethnic groups through an intercultural approach; and narrow the gap in their access to basic services. The Committee requests the Government to provide information on the measures taken within the framework of the Pact for equality of opportunity among indigenous, Black, Afro-descendant, Raizal, Palenquero and Roma groups and on any evaluations conducted on the impact of the measures. In this regard, the Committee requests the Government to clarify the manner in which the peoples covered by the Convention have participated in the development, implementation and evaluation of these measures.

Articles 5 and 7. Protection of cultural values and practices. Raizal fishers. The Committee recalls that, for some years now, it has been addressing the situation of Raizal small-scale fishers in the Department of San Andrés, Providencia and Santa Catalina, referring to the constraints they have faced in the exercise of their traditional fishing activities. In its previous observation, the Committee noted the Government’s initiative to prepare a Statute for the Raizal people and requested the Government to continue providing information on the measures taken to improve the conditions of life and work of the Raizal people. The Government reports that, within the context of a prior consultation process, the Bill, through which the rights of the Raizal ethnic people of the Archipelago of San Andrés, Providencia and Santa Catalina are recognized under the Statute for the Raizal people, has been finalized and submitted to the Senate for approval. Under the Bill, the right is recognized of the Raizal people to prior consultation and participation in the design, development and evaluation of environmental, socio-economic and cultural impact studies on projects likely to affect them directly. The Bill also provides for the establishment of the Forum for discussion and cooperation of the Raizal people as a body for dialogue with the Government. The Government also reports the development of a special plan for safeguarding ancestral knowledge and skills, and Raizal cultural practices relating to their coexistence with the sea, 2016, as a result of a participative process with the Raizal people. The Committee welcomes the progress made in developing the Statute for the Raizal people and trusts that the Government will take the necessary measures to adopt and implement the Act, through which the rights of the Raizal ethnic people of the Archipelago of San Andrés, Providencia and Santa Catalina are recognized under the Statute for the Raizal people, in cooperation with the indigenous peoples concerned. The Committee requests the Government to provide information on this subject, as well as on the implementation in practice of the special plan for safeguarding the ancestral knowledge of the Raizal people, indicating how the plan has contributed to the improvement of the conditions of life of the Raizal people and the protection of their traditional fishing activities.

Articles 6 and 15(1) Consultation. Legislative measures on the use of natural resources. In its previous comments, the Committee noted the consultations on draft legislative texts at the national level held through the Standing Dialogue Forum with indigenous peoples and organizations, and requested the Government to continue providing information on the outcome of those consultations. The Committee notes the list provided by the Government of draft legislative texts which were submitted for consultation between 2010 and 2018 to the Standing Dialogue Forum. These drafts include the proposal for a decree establishing and recognizing the competencies of the indigenous territories’ authorities with respect to the administration and preservation of natural resources and the environment. The Committee also notes the adoption of Decree No. 1372 of 2 August 2018, establishing a national space for prior consultation with the Black, Afro-Colombian, Raizal and Palenquero communities, which aims to serve as a forum for dialogue with the Government to advance the various stages of prior consultation on general legislative and administrative measures. The Government indicates that two prior-agreements have been reached through this forum with the Black, Raizal and Palenquero communities on the regulation process of Chapter IV of Act No. 70 of 1993, on transitory article 55 of the Political Constitution of Colombia, referring to the use of land and protection of natural resources, and the environment of the Black communities of the Pacific. The Committee requests the Government to report on the laws adopted following consultation with the peoples covered by the Convention, with examples of how those peoples have been able to influence the legislative texts adopted and how their proposals have been taken into consideration. In this connection, the Committee also requests the Government to provide information on the agreements reached, within the consultation process, and draft legislative texts regulating the use of natural resources by indigenous and Afro-descendant communities.

Articles 7 and 15. Natural resources. Impact studies of mining activities. In its previous comments, the Committee referred to the Mandé Norte and La Toma mining projects and noted that the Ministry of the Environment was undertaking environmental impact studies of mining activities in the indigenous communities in the reservations concerned. In this regard, the Government indicates that there are currently no records of procedures or granting of environmental licences related to the development of this project. In relation to the La Toma project, the Government indicates that the Ministry of Mines and Energy led the consultation process with the communities concerned. The Committee requests the Government to continue providing information on the mining projects that have been approved following a consultation process with the peoples concerned, indicating also how the outcome of environmental, social and cultural impact studies, undertaken with the participation of those peoples, have been considered fundamental criteria for carrying out such mining projects. Referring to its 2015 direct request, the Committee trusts that the necessary measures will be taken to ensure access to natural sources of water of the communities of Guajira.

The Committee further notes that the United Nations High Commissioner for Human Rights, in her report for Colombia, refers to violations of the right to health of indigenous peoples owing to the pollution of rivers used by these peoples as a result of mining activities (A/HRC/40/3/Add.3 of 4 February 2019, paragraph 62). The Committee also requests the Government to report on the measures adopted to protect the environment, including rivers, of the territories inhabited by the peoples covered by the Convention and of those where mining activities are carried out.

Articles 14, 17 and 19. Lands. The Committee notes the Government’s indication regarding the establishment of the National Land Agency (ANT), through Decree No. 2363 of 2015, replacing the Colombian Institute of Rural Development. The functions of the ANT include promoting the training of ethnic communities on managing the formalization and regularization of property rights; and agreeing and implementing, with these communities, the assistance plans that cover collective land titling programmes; the establishment, expansion, delineation and restructuring of indigenous reservations; acquisition and expropriation of land; and improvements.

In its previous comments, the Committee noted the measures adopted for the restitution of the ancestral lands of the Nasa indigenous communities of northern Cauca and the Afro-Colombian communities of Curvaradó and Jiguamiandó, and requested the Government to continue providing information on the restitution processes, as well as on the activities undertaken to ensure the personal and cultural integrity of these communities. In its reply, the Government indicates that between 1993 and 2016, seven reservations were established and six have been expanded for these peoples, benefiting 8,239 families over a total area of 35,849 hectares. With respect to the Curvaradó and Jiguamiandó communities, the Government reports that of the 156 plots of land that were separated from the collective titles of Curvaradó and Jiguamiandó, the ANT only received ten voluntary offers from the landowners. The ANT has made arrangements for the acquisition of the ten plots of land within the framework of the delineation of the collective territory of these communities. In relation to the other plots, visits have been carried out to verify the security of the area and actions have been taken for the re-housing of properties, which have been suspended due to the lack of minimum security conditions. The Committee also notes that the Government has implemented programmes to promote rural development for indigenous and Afro-descendant communities at the national level, and in particular for displaced families and voluntary returnees.

The Committee notes that, in their joint observations, the Confederation of Workers of Colombia and the Single Confederation of Workers of Colombia provide information on land claims, such as the case recognizing the ancestral lands of the Barí people, and express their concern at the ongoing conflicts over land between indigenous communities and non-indigenous people from rural areas. The trade unions consider that the problem concerning the recognition of ancestral lands stems from the superposition of multiple legal systems that creates conflicts between indigenous and rural peoples. The Committee also notes that the 2018 report of the Attorney General’s Office, entitled “Systematic violence against territorial rights defenders in Colombia”, states that State institutional weakness, at both legal and structural levels, in the constitutional protection of the territories of indigenous peoples and of Black, Afro-Colombian, Raizal and Palenquero communities, has generated long-term conflicts, fuelled by violent interactions over the years.

The Committee requests the Government to provide updated and detailed information on the activities of the National Land Agency relating to progress in land restitution processes for indigenous and Afro-descendant communities, in particular those who were displaced during the armed conflict, indicating the number and names of the beneficiary communities. It requests the Government to indicate the means and financial resources available to the ANT and other bodies responsible for resolving land restitution claims, and the conflicts generated in this respect. The Committee requests the Government to intensify its efforts to resolve the remaining land conflicts between indigenous communities and non-indigenous persons and to provide information on this matter.

Articles 20 to 22. Conditions of employment. Vocational training. The Committee notes that the Government, through the Directorate for the generation and protection of employment and family allowance of the Ministry of Labour, has identified various barriers to the integration of ethnic groups into the labour market, including a lack of awareness of their community skills, lack of procedures to strengthen their organizational processes from a commercial perspective, lack of basic and secondary education, and lack of knowledge of Spanish. The Government indicates that both the National System for victim support and reparation and the Standing Dialogue Forum with indigenous peoples and organizations seek to encourage differentiated active employment policies. The Committee also notes that, in its concluding observations, the United Nations Committee on Migrant Workers emphasized that the indigenous population on the border between Colombia and the Bolivarian Republic of Venezuela, particularly the Yukpa, and Wayuu peoples, and the Warao cross-border community, are in a situation of vulnerability and face threats of abuse, forced labour and slavery (CMW/C/COL/CO/3 of 13 September 2019, paragraph 52). The Committee requests the Government to take measures to strengthen the vocational, occupational and commercial skills of indigenous peoples to promote their integration into the labour market. The Committee also requests the Government to indicate the measures taken to ensure that the labour inspectorate can carry out its activities in border areas with a high concentration of indigenous migrant workers, in order to monitor their working conditions.

Articles 24 and 25. Social security and health. The Committee notes the Government’s indication that the Ministry of Health and Social Welfare has been taking steps to guarantee that ethnic groups are covered by the General Health and Social Security Scheme (SGSSS). The Government indicates that it is the obligation of health providers and public hospitals to deliver care to ethnic groups not affiliated with the SGSSS and not able to pay. It indicates that affirmative actions have been taken through the inclusion of the indigenous population in the SGSSS’s subsidized branch and that the funds for the subsidies for this population are channelled by the State through the mayor’s offices to the bodies promoting indigenous health. The Committee notes the detailed information provided by the Government on the manner in which ethnic groups participate in the SGSSS and the specific actions carried out by the Ministry of Health and Social Welfare with the indigenous, Afro-descendant and Roma populations. It also notes that the healthcare sub-committee of the Standing Dialogue Forum with indigenous peoples and organizations has been working on structuring the independent and intercultural indigenous health system. The Committee requests the Government to continue providing information on the progress made in expanding the social security regime to indigenous peoples, specifying the number of persons belonging to the peoples covered by the Convention who are under the subsidized scheme. The Committee also requests the Government to report on the progress made in structuring the independent and intercultural indigenous health system, indicating how the cooperation of indigenous peoples in the administration and organization of health services is guaranteed.

Part VI. Education. The Committee notes the Government’s indication that the Ministry of National Education has collaborated with national indigenous organizations in the development of the independent indigenous education system, for which the Standing Concertation Forum adopted methodology for the consolidation of a draft standard on the subject. The Committee notes that the report of the Coordinating Body of Indigenous Organizations in the Amazon Basin (COICA) indicates that, despite the significant autonomy granted to the indigenous authorities in the management of their educational policies, the Government retains the competence for coordinating curricular and pedagogical principles at all levels of education. The Government points out that it has also been consolidating the educational policy for the Black, Afro-Colombian, Raizal and Palenquero populations within the National Pedagogical Commission. Within the context of a differential approach in national education, the Government indicates that between 2007 and 2017 it signed approximately 292 agreements with indigenous organizations and 42 agreements with community organizations and councils of Black, Afro-Colombian, Raizal and Palenquero communities for the development of ethnic group-based educational projects. The Government reports on the implementation of a training plan for community teachers with an intercultural approach and on progress in the development of a training plan for translators and interpreters in native languages and Spanish. The Government also indicates that it has developed the Higher Education Inclusion Index as a tool that enables higher education institutions to recognize the manner in which they manage the diversity of their students. In addition, in order to ensure that Black, Afro-Colombian, Raizal and Palenquero populations access and remain in higher education, the Government has launched the Black Communities Fund, which has benefited a total of 294 students from the departments of Chocó, Valle, Cauca, Nariño, Atlántico and Bolívar, the majority of whom are women of African descent. The Committee requests the Government to continue providing information on progress in the development and establishment of an intercultural education system, indicating how this is coordinated with the general national education system, and how cooperation is facilitated with the peoples covered by the Convention in the development and implementation of study programmes. The Committee also requests the Government to continue providing updated data on the number of students enrolled in programmes designed to promote access to and retention of members of indigenous peoples and persons of African descent in higher education institutions.

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The Committee notes the joint observations of the International Organisation of Employers (IOE) and the National Employers Association of Colombia (ANDI) received on 31 August 2018, which highlight and welcome the Government’s efforts towards the implementation of the Convention. The Committee also notes the observations of the IOE, received on 2 September 2019.

The Committee also notes the observations of the Workers’ Trade Union Confederation of the Oil Industry (USO) received on 1 September 2017; the joint observations of the Single Confederation of Workers of Colombia (CUT), the Colombian Federation of Education Workers (FECODE) and the Teachers’ Association of Cundinamarca (ADEC) received on 30 May 2018; and the joint observations of the Confederation of Workers of Colombia (CTC) and the CUT received on 1 September 2018. The Committee notes the Government’s reply to the joint observations of the CTC and CUT, and to the observations of the ANDI and IOE, received on 23 November 2018, and to the joint observations of the CUT, FECODE and ADEC, received on 20 May 2019.

The Committee also notes the observations of the General Confederation of Workers of Peru (CGTP) received on 23 March 2017, which include the report of the Coordinating Body of Indigenous Organizations in the Amazon Basin (COICA) on the application of the Convention in various countries.

Articles 2, 3 and 33 of the Convention. Restoration of peace. Human rights. Reparations. The Committee notes the Final Agreement for the end of the conflict and the building of stable and lasting peace signed by the Government and the Revolutionary Armed Forces of Colombia on 24 November 2016, and the corresponding Framework Plan for its implementation. The Committee welcomes the inclusion, in the Agreement, of a chapter on ethnic groups, which establishes that the interpretation and implementation of the Agreement shall take into account the principles of participation and consultation, identity and cultural integrity and the rights of ethnic peoples over their land. The Committee notes that the Framework Plan for the implementation of the Agreement contains specific targets and indicators for indigenous peoples, persons of African descent, and Raizal, Palenquero and Roma peoples, which were determined in consultation with the Government and the special high-level body for ethnic peoples. The targets include the delineation and protection of collective lands, the participation of the peoples concerned in the comprehensive rural reform, and the promotion of the participation and leadership of indigenous and Roma women and women of African descent.

The Committee notes that the Unit for comprehensive victim support and reparation is the entity responsible for registering individual or collective victims, and in implementing support, assistance and reparation measures. The Unit houses the Ethnic Affairs Directorate, whose function is to coordinate the comprehensive support and reparation actions for indigenous peoples and communities, the Roma people and the Black, Afro-Colombian, Raizal and Palenquero communities. The Government indicates that any person or authorized spokespersons of the communities can report violations of their rights in the context of the armed conflict to the offices of the State Prosecutor, following which the Unit reviews these reports in order to determine whether the victims will be registered. The Government adds that collective reparation plans incorporate the stages of identification, registration, enlistment and assessment of the damage, drawing up the reparations plan, implementation and follow-up. According to information from the Unit for comprehensive victim support and reparation, the number of collective victims from ethnic groups as of February 2018 was 390; while in October 2019 there were 227,686 individual victims from indigenous peoples, 792,540 identified as Afro-Colombian, 19,317 as Roma, 10,048 as Raizal and 2,731 as Palenquero people. The Committee notes the Government’s indication that the Committee for follow-up and monitoring the implementation of Decree Laws Nos 4633, 4634 and 4635 of 2011 on comprehensive reparation measures and restitution of territorial rights of collective victims belonging to indigenous peoples, Roma or Gypsy peoples, and the Black, Afro-Colombian, Raizal and Palanquero communities, respectively, set out, in its five reports submitted to Congress, its concern at the significant delay in the implementation of collective reparations for ethnic groups. In this regard, the Committee notes that, in their joint observations, the CUT and the CTC also refer to the shortcomings in the implementation of collective reparations mechanisms for indigenous communities.

In its previous comments, the Committee noted the ethnic safeguard plans for the indigenous peoples who have faced threats to their life and culture owing to the armed conflict, which had been issued by the Constitutional Court in its ruling No. 004 of 2009. The Committee requested the Government to provide information on the implementation and impact of those plans. In this respect, the Government reports that in 2017 there were 39 ethnic safeguard plans, of which 78 per cent have passed the self-assessment stage with the peoples concerned, 62 per cent have passed the concertation stage and 46 per cent are in the implementation stage.

The Committee notes that, in its 2019 report on the situation of human rights in Colombia, the United Nations High Commissioner for Human Rights noted with concern the high number of killings of human rights defenders of indigenous and Afro-Colombian persons primarily in Antioquia, Cauca and Norte de Santander (A/HRC/40/3/Add. 3 of 4 February 2019, paragraphs 15–17). The Committee also observes that the 2018 report of the State Prosecutor, entitled “Systemic violence against territorial rights defenders in Colombia”, analyses the interplay of violence against land rights defenders and their actions to defend their land rights. The report indicates that between January 2016 and March 2017, 156 murders of social campaigners, community leaders and human rights defenders were registered, at least 25 per cent of whom were leaders of indigenous peoples and communities. The Committee notes that, in its observations, USO refers in general to threats and acts of violence faced by the indigenous communities (Chidima Tolo and Pescadito) in the northern part of the Chocó region owing to the presence and actions of armed groups on their lands. It also refers to limitations to their right to movement inside and outside of their territory, and to the existence of anti-personnel mines and explosives, which amounts to a high-risk situation for members of the communities.

The Committee encourages the Government to continue to take actions for the restoration of peace that may contribute to the cessation of violence, the inclusion of members of the peoples covered by the Convention in the economic and social development of the country, and the full exercise of their human and collective rights. The Committee urges the Government to take appropriate measures to investigate the causes, establish responsibility and punish the perpetrators and instigators of the murders of indigenous rights defenders and acts of violence, and to guarantee the physical integrity and access to justice of the peoples covered by the Convention who continue to be victims of the conflict.

The Committee recalls that the Convention is an instrument that seeks to contribute to sustainable and inclusive peace and requests the Government to provide information on the manner in which the peoples covered by the Convention participate in the implementation of the Peace Agreement in all aspects that concern them. The Committee also requests the Government to intensify its efforts to ensure the implementation, without delay, of the collective reparations plans and ethnic safeguard plans, and provide detailed and updated information on progress in this regard, indicating the manner in which the peoples covered by the Convention have participated in the evaluation of the implementation and sustainability of the measures taken to this end.

Articles 6, 7 and 15. Consultation. Development projects. In its previous observation, the Committee noted the Presidential Directive No. 10 of 2013, containing the Guide on holding prior consultations with ethnic communities; as well as the document approved in 2013 by the National Economic and Social Policy Council, namely the Conpes Document No. 3762, which sets out the main features for the development of projects of national and strategic interest and, according to the Government, seeks to improve the exercise of the right to prior consultation. The Committee requested the Government to report on the functioning of those mechanisms and on the manner in which the participation of ethnic peoples covered by the Convention is ensured in the benefits accruing from such activities. The Government indicates that, between 2013 and 2018, 6,243 prior consultation processes were carried out, of which 18 per cent regarded activities in the hydrocarbons sector, 10 per cent in the environmental sector, 9 per cent in infrastructure and telecommunications, 7 per cent in mining and 6 per cent in electricity. The Government indicates that the Directorate for Prior Consultation of the Ministry of the Interior takes into consideration the principles developed by the Constitutional Court in its decisions regarding consultation, particularly as they relate to mining or port projects and infrastructure works, and provides examples of the way in which these principles of jurisprudence have been applied in prior consultations held with the different communities.

With respect to the identification of the communities to be consulted, the Government reports that the process to certify the presence or otherwise of ethnic communities in the area that will be affected by a project, works or activities is initiated by an application from the persons concerned, which is examined by the Directorate for Prior Consultation of the Ministry of the Interior to determine whether the information provided by the applicant is sufficient to continue with the certification process. This information is compared with the information contained in the cartographic databases of indigenous reservations and community councils; the databases of the Directorate for Indigenous Affairs and Roma Communities and the Directorate for Black, Raizal and Palenquero communities; the database for prior consultation; and the information on applications for collective land titling by indigenous and Black communities from the National Land Agency. The Government specifies that, where there is uncertainty in determining the presence of an ethnic community within the area of interest of the projects, works or activities, a visit is planned to verify the situation.

The Committee notes that, in its observations, the IOE indicates that the lack of clear rules for the development of the processes of prior consultation is a concern for the ANDI. The ANDI considers that despite the extensive jurisprudence of the Constitutional Court on the matter, there is no legislation that establishes basic guidelines in relation to the stages of prior consultation process, its duration, costs rights and obligations of the parties involved in the process and a closing mechanism. Therefore, the ANDI, the lack of clear rules in prior consultation processes becomes the main difficulty to advance investments in the country.

The Committee notes all of this information and, with reference to its previous observation, once again requests the Government to indicate whether Presidential Directive No. 10 and the Conpes Document No. 3762 are still applied and, if so, to provide information in this respect. The Committee requests the Government to continue providing information on the progress towards the adoption of regulations for prior consultation relating to projects undertaken on land belonging to peoples covered by the Convention, with an indication of the measures taken to ensure that full and informed consultations are held with the peoples concerned. It also requests the Government to indicate which mechanisms are in place to ensure the participation of those peoples in the benefits accruing from such activities.

The Committee also notes that ruling No. SU 123 de 2018 of the Constitutional Court, which compiles the Court’s jurisprudence on prior consultation, states that prior consultation is imperative “when there is reasonable evidence that a measure is likely to directly affect an indigenous people or a community of African descent”. The Committee recalls that Article 15(2) of the Convention sets out that the aim of the consultation is to ascertain whether and to what degree the interests of the peoples concerned would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands. The Convention does not set forth evidence of a possible impact as a condition for consultation. In this connection, the Committee requests the Government to adopt measures to ensure that, in practice, the scope of the obligation of consultation is not reduced, by requiring evidence that the measure is likely to affect the indigenous peoples. Considering that Article 15(2) establishes the obligation to ascertain whether and to what degree the interest of these peoples would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands, the Committee trusts that the judicial interpretation be read and applied in this sense.

Fees for holding prior consultation. The Committee notes that, in its ruling No. SU123 de 2018, the Constitutional Court ordered Congress and the Government to take measures to establish a robust institutional framework for the issuance of certificates regarding the presence of ethnic groups in areas affected by projects, works and activities that balances between the right to consultation of the ethnic groups with the legal certainty of the investors. It notes in this respect that section 161 of Act No. 1955 of 2019 establishes the fee for holding prior consultation, which must be paid to the Ministry of the Interior by the party organizing the prior consultation and must cover the costs of the fees of the officials who devise the methodology, preconsultation and consultation, including travel expenses. The Act also provides for related costs and access to information on the presence of communities. The Committee recalls that in its general observation of 2018 it highlighted that it is incumbent upon governments to establish appropriate mechanisms for consultation at the national level and that public authorities must undertake consultations, without interference, in a manner appropriate to the circumstances. The Committee requests the Government to provide information and examples of the application in practice of the fees for holding prior consultation, with an indication of whether this has affected the effective implementation of consultation processes with the peoples covered by the Convention.

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Article 1 of the Convention. Self-identification. The Government indicates in its report that the Directorate for Indigenous, Roma and Minority Affairs (DAIRM) has registered the existence of 101 peoples. The Committee notes that the DAIRM does not conduct formal recognitions, but respects the right of indigenous peoples to self-identification. The Government adds that studies have been initiated for the registration of the Ambalo, Andakies, Cariachiles, Nutabes, Polindara and Quizgo peoples. The Committee notes the Government’s proposal to undertake an indigenous self-census process, with the support of the DAIRM, with a view to determining the social composition of indigenous communities. The Committee requests the Government to continue providing information on the indigenous and Afro-Colombian peoples which receive the protection envisaged by the Convention, including on the self-census process.

Articles 2 and 33. Coordinated and systematic action. The Committee notes that 33 ethnic peoples and communities are covered by comprehensive compensation plans. The Government has conducted 13 prior consultation processes with communities and peoples which have been victims of armed conflict with a view to determining damages and developing comprehensive collective compensation plans. The Committee requests the Government to continue providing information on the planning, coordination, execution and evaluation of comprehensive compensation measures for indigenous and Afro-Colombian peoples who are victims of armed conflict.

Article 6. Consultations on legislative measures. The Government describes the consultation processes at the national level held through the Standing Dialogue Forum on draft legislative texts, including the text to reform Act No. 99 of 1993 (the Environmental Act), the Bill on lands and rural development and the reform of the Mining Code. The Government indicates that it submitted for prior consultation the draft decree issued to implement Andean Decision No. 391 of 1996 on access to and use of genetic resources and related traditional knowledge. The consultations held have included the pre-consultation, socialization and consolidation phases. The Government adds that a legislative proposal has been developed on prior consultation which will be subject to consultations with indigenous and Afro-Colombian communities. The Committee requests the Government to continue providing information on the outcome of the consultations held on legislative measures.

Article 15. Natural resources. With regard to the Mandé Norte mining project, the Government indicates in its report that the inhabitants of the Chidima reservation (resguardo) were consulted in 2013 and that, as a consequence of the consultation, it was decided to change the route of the road that was to be constructed as part of the project. In accordance with ruling No. T-769 of 2009, the Ministry of the Environment is undertaking environmental impact studies of mining activities in the indigenous communities in the reservations concerned. With regard to the situation of the La Toma community, the Government indicates that in January 2014 a prior consultation workplan was agreed between the Ministry of Mines and Energy and the La Toma Community Council, which is being put into effect. In March 2015, the Prior Consultation Department issued a report containing the results for existing mining concessions, which is being analysed together with the Autonomous Regional Corporation of Cauca. The Single Confederation of Workers of Colombia (CUT) and the Confederation of Workers of Colombia (CTC) express their concern at the limitations on access to natural sources of water of the indigenous communities of Guajira. The Committee requests the Government to continue providing updated information on the consultations held with indigenous communities affected by the mining activities of the Mandé Norte and La Toma projects. Please also indicate the measures adopted to safeguard the access of indigenous peoples to the natural resources pertaining to their lands and which are necessary for their subsistence.

Article 17. Transmission of land rights. The Committee requests the Government to indicate what procedures are in force for the transmission of the land rights of indigenous and Afro-Colombian peoples among their members.

Article 19. Agrarian programmes. The Committee requests the Government to indicate the manner in which national agrarian programmes secure to indigenous and Afro-Colombian peoples the means required to promote the development of their lands.

Article 20. Recruitment and conditions of employment. The Committee requests the Government to provide information on the measures adopted to ensure the effective protection of indigenous and Afro-Colombian peoples with regard to recruitment and conditions of employment, and the measures adopted to ensure adequate labour inspection.

Articles 21 and 22. Vocational training. The Committee requests the Government to provide information on the vocational programmes that have been adopted taking into account the special needs of indigenous and Afro-Colombian peoples. Please indicate the manner in which such peoples have been consulted on the organization and operation of such programmes.

Article 24. Social security and health. The Committee requests the Government to indicate the extent to which social security schemes cover the peoples concerned.

Articles 26 and 27. Education. The Committee requests the Government to indicate the measures adopted with a view to ensuring that the peoples concerned benefit from education at all levels. Please indicate the manner in which indigenous and Afro-Colombian peoples participate in the development and implementation of educational programmes which address their special needs and take into account their social, economic and cultural aspirations.

Article 32. Contacts and cooperation across borders. The Committee requests the Government to provide information on any international agreements that have been concluded to facilitate contacts and cooperation between indigenous and tribal peoples across borders.

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The Committee notes the observations of the National Employers Association of Colombia (ANDI), received on 1 September 2015, the Single Confederation of Workers of Colombia (CUT), received on 2 September 2015, the General Confederation of Labour (CGT), received on 2 September 2015, and the Confederation of Workers of Colombia (CTC), received on 29 August and 4 September 2015, and the Government’s reply to these observations.

Article 4 of the Convention. Human rights. Ethnic protection plans. The Government includes in its report detailed information on the ethnic protection plans for 32 peoples affected by internal armed conflict, adopted to give effect to ruling No. 004 of the Constitutional Court of 2009. The Committee notes that the plans have been submitted for pre-consultation and dialogue with the communities concerned. The CTC and the CUT indicate that indigenous communities are calling for the adoption of protection measures against threats to their life and culture and are expressing concern at the delay in the implementation of the ethnic protection plans. According to the indications of the National Indigenous Organization of Colombia, forwarded by the CTC, the Emberá people in the department of Chocó are still being affected by relocations. The CTC adds that indigenous peoples located in the Pacific corridor are in a situation of extreme vulnerability. In its reply, the Government indicates that the Department of Indigenous, Rom and Minority Affairs of the Ministry of the Interior is taking action to move forward effectively and efficiently with the protection of indigenous peoples. The Committee requests the Government to continue providing information on the implementation of the ethnic protection plans and their impact, particularly for the protection of the most vulnerable indigenous peoples.

Protection of the fundamental rights and restitution of the collective lands of indigenous and Afro-Colombian communities. The Committee notes the updated information provided by the Government on the measures adopted in accordance with ruling T-025 of 2004 of the Constitutional Court for the restitution of the ancestral lands of the Afro-Colombian communities of Curvaradó and Jiguamiandó. The Committee notes the censuses conducted to identify members of the communities affected and the studies that are being undertaken to assess their socio-economic situation. The Committee also notes with interest the two rulings attached to the Government’s report ordering the restitution of lands: the ruling of 23 September 2014 of the Civil Chamber Specialized in Land Restitution of the High Court of Antioquia, ordering the restitution of 56,405 hectares to the Emberá Katío community in the Andágueda reservation (resguardo), and the ruling of 1 July 2015 of the Civil Court of First Instance of the Specialized Land Restitution Circuit in Popayán ordering the restitution of 71,149 hectares located in the municipality of Timbiquí, department of Cauca, to the Renacer Negro Community Council. The Government adds the Comprehensive Victim Care and Compensation Unit has applied for precautionary measures to protect 16 lands belonging to indigenous and Afro-Colombian communities. The CUT and the CTC indicate that disputes are continuing concerning the restitution of lands to the Nasa communities in the north of Cauca. In its reply, the Government indicates that, in accordance with the agreements for the reparation of indigenous communities in the north of Cauca, lands were acquired for the Canoas, Corinto, Guadualito, Jambaló, Hellas, La Cilia, La Concepción, Las Delicias and Munchique–Los Tigres reservations. The Committee also notes that in February 2015 the Minister of Agriculture and Rural Development presented to the representatives of the indigenous communities of the north of Cauca a proposed project for the construction and improvement of rural housing as compensation for the delay in giving effect to the reparation measures. The Committee requests the Government to continue providing information on progress in the proceedings for the restitution of collective lands to indigenous and Afro-Colombian communities. Please continue providing information on the impact of the measures adopted further to the applications for the restitution of the lands of the Nasa people, and the activities undertaken to protect their physical and cultural integrity.

Article 5. Protection of Raizal small-scale fishers. The Government indicates that section 131 of the National Development Plan 2014–18 (Act No. 1753 of 2015) provides for the preparation of a Statute for the Raizal People of the Archipelago of San Andrés, Providencia and Santa Catalina in the context of the application of the Convention and the designation of the UNESCO Seaflower Biosphere Reserve. The Government adds that a Support Plan for Small-scale Fishing has been developed with the participation of representatives of fishers’ associations of San Andrés. In relation to education, the Government has concluded a contract with the Living in English Corporation for the drawing up of an ethnic educational project intended for Raizal communities which envisages the participation of the representative organizations of the communities in its implementation. The ANDI emphasizes that the Government has been implementing works in the fields of education, infrastructure, transport, provision of public services and the environment in the islands of San Andrés and Providencia, which were designed together with the Raizal communities. The CGT indicates that the consultations held have focused on the Raizal communities of San Andrés and that the participation of the Raizal Peoples of Providencia and Santa Catalina needs to be strengthened. The Committee requests the Government to continue providing information on the impact of the measures adopted to ensure adequate conditions of life and work for the Raizal peoples.

Articles 6, 7 and 15. Consultation and participation. Natural resources. The Committee notes Conpes Document No. 3762, which was approved on 20 August 2013 by the National Economic and Social Policy Council, and which is referred to by the CGT in its observations. Conpes Document No. 3762 sets out the main features of the policy for the development of projects of national and strategic interest, including participation and dialogue with communities prior to the granting of environmental licences for projects of national and strategic interest. The Government maintains that Conpes Document No. 3762 seeks to improve the efficiency and effectiveness of the exercise of the fundamental right to prior consultation. The Committee requests the Government to provide information on the manner in which the consultation and participation of indigenous peoples, as required by the Convention, is ensured in the projects that affect them directly which are presented and supervised by the National Economic and Social Policy Council.

Article 15. Consultation prior to the development of projects. The Committee notes with interest the adoption of Decree No. 2613, of 20 November 2013, issuing the Inter-institutional Coordination Protocol for Prior Consultation. The objective of the Protocol is to facilitate coordination between the competent public bodies and to ensure the circulation of information with a view to certifying the presence of ethnic communities in order to hold prior consultations. The Department of Prior Consultation of the Ministry of the Interior will have sole competence for certifying the presence of ethnic communities. The Colombian Rural Development Institute (INCODER) is responsible for providing the Department of Prior Consultation with information on legally constituted reservations (resguardos) and the process of constituting indigenous communities, and on the collective titles of black communities. The Protocol also provides for the representatives of indigenous communities to be members of the follow-up committee to verify the application of the undertakings made during the consultations. The Committee also notes with interest the adoption of Presidential Directive No. 10 of 7 November 2013, containing the Guide on the holding of prior consultations with ethnic communities. In accordance with Presidential Directive No. 10, the process of consultation includes five stages: (1) certification of the presence of communities based on the criteria of the Convention; (2) coordination and preparation of the consultation, with the participation of the communities; (3) pre-consultation; (4) prior consultation; and (5) follow-up of agreements. During the consultation process, the Department of Prior Consultation receives support from the Office of the Public Prosecutor and the Ombudsman. The Guide also provides that the purpose of consultation is the holding of dialogue between the State, the entity executing the project and ethnic communities on the impact on communities of projects for the exploitation of resources or infrastructure projects with a view to the formulation of measures to prevent, remedy, mitigate and compensate any negative effects which may be caused by a project. The CGT indicates that only communities entered into the database of the Ministry of the Interior are considered for the purpose of consultation. The Government emphasizes that, not only are these communities consulted, but they are also considered as other sources in ascertaining whether or not ethic communities are present in the project area. The Government indicates that, during the period between 2003 and 2015, a total of 4,891 consultation processes with ethnic communities were conducted, of which 4,198 resulted in agreements. The ANDI indicates that various enterprises and civil society sectors are collaborating through the Regional Centre of the Global Pact Network for the dissemination of the Convention and the establishment of dialogue platforms between the Government, enterprises and indigenous peoples. The CGT considers that the consultation process needs to be adapted to the situation of the community that is to be consulted and emphasizes the importance of ensuring that consultation is undertaken prior to the adoption of decisions that may affect indigenous peoples. The Committee requests the Government to continue to provide information on the functioning of the Inter-institutional Coordination Protocol for Prior Consultation and to provide examples so that it can examine the manner in which the Inter-institutional Coordination Protocol for Prior Consultation and the Guide on holding prior consultations ensure that indigenous peoples are consulted before any programmes for the exploration or exploitation of resources pertaining to their lands are undertaken or authorized. Please also indicate the manner in which the participation of ethnic communities is ensured in the benefits accruing from such activities.

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

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Protection of Raizal small-scale fishers. The Committee notes the observations of the General Confederation of Labour (CGT) received on 10 February and 28 March 2014 in which it once again expresses its concern at the situation of the Raizal population due to the violation of their ancestral rights protected by the Convention. The Committee also notes the Government’s replies received in September and November 2014. The CGT indicates that the Government has not ensured the right of prior consultation of the Raizal people in the San Andrés, Santa Catalina and Providencia archipelago in the context of the case before the International Court of Justice (ICJ) respecting the territorial dispute with Nicaragua. The CGT indicates that fishing is the second economic sector on the island following tourism and recalls that the fishing area had already been reduced following the fixing of the northern maritime border with Honduras, which had a major social and economic impact on many Raizal families. In this context, the CGT indicates that since November 2012, following the decision of the ICJ concerning the maritime border with Nicaragua, Raizal fishers have no longer been able to fish with the tranquillity that they did ancestrally. Raizal fishers have to cross Nicaraguan maritime territory, which is reported to give rise to difficulties and the payment of fines. The CGT estimates that around 100 Raizal families are now without the support which they derived directly from fishing. Furthermore, industrial fishing vessels come to fish very close to the keys, which were previously exclusive fishing areas for Raizal small-scale fishers. The CGT calls for the rights of access and of fishing in ancestral areas to be recognized for the Raizal people and for their subsistence activities to be guaranteed. The Committee observes that the CGT continues to express concern at the obstacles affecting traditional fishing by the Raizal community and the need to ensure the consultation and participation of that community in the event that further measures are adopted for regional development which affect it directly.

The Government indicates in the report received in October 2014 that it maintains an open, frank and constructive dialogue with the local authorities of San Andrés, including the Raizal communities. The Government recalls that the Constitutional Court, in response to a request from the Raizal community, which alleged that there was a requirement to hold consultations concerning the maritime borders agreed to in the treaty with Honduras (the bilateral treaty concluded in San Andrés on 2 August 1986), found that it was not indispensable to hold specific and compulsory consultations with individual populations, even though it could be desirable to do so (paragraph 19 of ruling C-1022 of 16 December 1999). The Government adds that the planning and development of the strategy in relation to the ICJ was the subject of studies, meetings and discussions with representatives of the population of San Andrés. The Government adds that the waters in which the small-scale fishers of the Raizal community traditionally fished continue to belong to Colombia and the fishers can continue their work as they did before the ruling of the ICJ of November 2012. With regard to the right of the inhabitants of San Andrés to have access to traditional fishing areas, the Government specifies that such fishing areas are located precisely around the keys and that these areas were not affected by the ICJ ruling, as they consisted of territorial waters awarded to Colombia, together with the sovereignty of the islands and the seven keys. The Government also reports the measures taken in support of small-scale fishing and other activities intended to promote social, economic and cultural life in San Andrés, including a credit programme with the Inter-American Development Bank intended, among other objectives, to promote comprehensive urban development, access to water and sanitation, and the improvement of coastal infrastructure.

According to the information provided by the Government in its report received in November 2014, the Raizal people have the fundamental right to prior consultation and the right to participate in the analysis and the identification of the impact and the formulation of measures relating to projects, works or activities directly affecting their economic, social and cultural development, is guaranteed. The Government maintains that the representatives of the Fishers’ Associations of San Andrés were included in the implementation of a support plan for traditional fishing: the Raizal community benefits from the coverage of the social protection system, participates in meetings of health services and cooperates with educational services. In addition, the Government states that island communities are involved in the Neighbourhood Commission with Jamaica. The Committee refers to its 2013 comments and requests the Government to provide examples of consultations with representatives of Raizal fishers on the matters covered by the Convention and the impact of the adopted measures, with the participation and cooperation of the Raizal communities, designed to improve their conditions of life and work, and their levels of health and education (Articles 6 and 7(2) of the Convention). The Committee reminds the Government that the next report must include the information requested in the 2013 observation and direct request. In this regard, the Committee hopes that the Government will prepare its responses to information requested in consultation with the social partners and interested indigenous organizations (Parts VII and VIII of the report form).

[The Government is asked to reply in detail to the present comments in 2015.]

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Article 1 of the Convention. Self-identification. The Government indicates in the report received in August 2013 that in recent years, by way of follow-up to an unprecedented movement, the Directorate for Indigenous, Roma and Minority Affairs (DAIRM) has recognized and registered various communities which have been submitting claims for recognition as new indigenous peoples. The Committee notes with interest that, in the context of the National Committee for Dialogue with the Indigenous Peoples, the Government has undertaken to recognize and register indigenous peoples that have not yet been recognized. The Government explains that this involves work in several phases with the interaction of ethno-historians, lawyers and anthropologists in order to implement the requirements of the National Development Plan 2010–14. The Committee invites the Government to continue providing information on the manner in which new indigenous peoples are included within the scope of the Convention and are protected by measures intended to give effect to it.

Article 2. Coordinated and systematic action to protect the physical, social, cultural, economic and political integrity of indigenous and Afro-Colombian communities. Further to a request made in the observation of 2012, the Government sent the “Guide for the application of the preventive policy of the Office of the Prosecutor-General concerning the rights of ethnic groups with respect to protection of the fundamental right to free and informed prior consultation”, published in April 2011. The Committee also notes with interest the objectives and principal actions of the DAIRM and the inter-institutional dialogue for strengthening relations with the Afro-indigenous community of the department of Chocó, which also includes the participation of the Ministry of Labour. The Government includes up-to-date information on the operations involving the participation of the Ministry of National Defence undertaken in 2012 further to the orders handed down by the Constitutional Court in January 2009 safeguarding 34 indigenous peoples. The Committee invites the Government to continue providing information in its next report to enable it to evaluate progress made in relation to the ethnic safeguarding of 34 indigenous peoples. The Committee would be grateful if the Government would include in its report a summary of any actions of the Office of the Prosecutor-General that have contributed to giving effect to the Convention.

Article 3. Human rights. The Committee invites the Government to include information in its next report on the implementation of the plans for full collective reparation provided for in Legislative Decree No. 4633 of December 2011 issuing measures for assistance, care, full reparation and restitution of territorial rights to victims who are members of indigenous peoples and communities, the participation of representatives of these communities and the manner in which adopted measures have contributed towards restoring the rights established in the Convention.

Articles 6 and 7. Other draft legislation. The Government indicates that it is planned in 2013 to hold prior consultations on important legislative and administrative measures, such as the decree to establish regulations for implementing the Andean Community Decision and the national law concerning access to genetic resources and related traditional knowledge. The Committee notes that the Land and Rural Development Bill, the reform of the Mining Code and the reform of regional autonomous corporations were on the agenda of the Standing Committee for Dialogue. The Committee invites the Government to include information in its next report that will enable it to examine the manner in which the peoples concerned have been consulted and have expressed views that can affect the outcome of the consultation process on the abovementioned draft legislation.

Article 15. Consultation before undertaking or authorizing any programme for the exploration or exploitation of resources on indigenous territories. The International Organisation of Employers (IOE) and the National Employers’ Association of Colombia (ANDI) indicate that the Ministry of the Environment and Sustainable Development will establish the requirements, procedures and time frames for holding public hearings on environmental licences. The Committee invites the Government to include up-to-date information in its next report on the consultations held during the period covered by the next report by the Directorate for Prior Consultation and the Ministry of the Environment and Sustainable Development with a view to authorizing programmes for the exploitation of resources. Please also indicate the manner in which it is ensured that the indigenous communities concerned participate in the benefits of such activities (Article 15(2) of the Convention).

Consultation on exploration and exploitation projects in the Chidima reservation (department of Chocó). Mandé Norte project (departments of Antioquia and Chocó). In reply to the comments which the Committee has been raising for many years, the Government states that in April 2013 a meeting coordinated by the Directorate for Prior Consultation was attended by members of the communities from the Chidima Tolo and Pescadito indigenous reservations, accompanied by the governor of the Cabildo Mayor (council) of the area, and other interested parties. At the meeting the indigenous communities indicated that they needed substantive information on the subject of prior consultation and the project concerned in order to exercise their fundamental right to prior consultation. The Municipal Council considered the provisions of tutela Ruling No. T-129 of 3 March 2011 and the fact that the indigenous communities had voiced their opposition to the construction of a road on their territory and the decision was taken to change the course of the road. The Committee notes with interest that the Directorate for Prior Consultation verified that the new course of the road would not affect the territory of the indigenous communities. The Government also reports that in April 2011 the Directorate for Prior Consultation asked the Ministry of the Environment and Sustainable Development for copies of the scientific studies on the impact of the licence awarded as part of the Mandé Norte project for mineral exploration and exploitation. The Committee refers to its 2009 observation and invites the Government to include information in its next report on the follow-up given to Ruling No. T-769/09 of 29 October 2009, whereby the Constitutional Court granted protection to the right to prior consultation to the communities affected by a licence awarded as part of the Mandé Norte project for mining exploration and exploitation in the departments of Antioquia and Chocó.

Other disputes relating to mining resources. The Committee referred in its observation of 2012 to the situation that resulted in March 2006 from a lack of consultation when a licence for mining exploitation was granted for the extraction of gold from a rural plot with a surface area of some 99 hectares located in the corregimiento (administrative subdivision) of La Toma in the municipality of Suárez (department of Cauca). In its observations of March 2012, the Single Confederation of Workers (CUT) referred to Constitutional Court Ruling No. T 1045A/10 of 14 October 2010 issued in tutela proceedings initiated by the La Toma community council. The Constitutional Court, among other things, ordered the Ministry of the Interior to conduct, guarantee and coordinate prior consultation and ordered the suspension of mining exploitation activities. The Committee would be grateful if the Government would provide information in its report to enable the Committee to examine the manner in which the rights of consultation and participation provided for in the Convention in cases of exploration and exploitation of natural resources in territories occupied by Afro-Colombian communities have been re-established. The Committee invites the Government to refer to the other disputes mentioned in previous comments, such as the situation in the corregimiento of La Toma, and include up-to-date information on any further developments in its next report.

[The Government is asked to reply in detail to the present comments in 2015.]

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The Committee notes the Government’s report received in August 2013 indicating that the most representative employers’ and workers’ organizations analysed the report in line with the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and they agreed on the importance of the Convention. The National Employers’ Association of Colombia (ANDI), the International Organisation of Employers (IOE), the General Confederation of Labour (CGT), and the Single Confederation of Workers (CUT) in conjunction with the Confederation of Workers of Colombia (CTC) submitted observations regarding the application of the Convention. The Committee invites the Government, when preparing its next report, to hold consultations with the social partners and indigenous organizations on the subjects referred to in the present observation and to include information on the results achieved by the measures adopted to give effect to each of the provisions of the Convention (Parts VII and VIII of the report form).

Protection of Raizal small-scale fishers. In a communication received in February 2013, the CGT, on behalf of the Raizal Small-Scale Fishers’ Associations and Groups of the Department of San Andrés, Providencia and Santa Catalina, referred to Judgment No. 124 of 19 November 2012 of the International Court of Justice (ICJ) concerning the territorial dispute between Colombia and Nicaragua. According to the Raizal small-scale fishers’ organizations of San Andrés and Providencia, the judgment has negative implications for traditional fishing. In a communication received in September 2012, the Government explains that traditional fishing sites are precisely located in the vicinity of areas not affected by the ICJ judgment since it is a question of territorial sea and in this respect the ICJ ruled in favour of Colombia. The Government states that fishers from the islands of San Andrés, Providencia and Santa Catalina can continue fishing in the traditional way. The Government sets out the new options for employment and productivity available to the island fishers, and describes the measures taken to support trade, tourism, education and vocational training, and the Raizal communities’ participation in cultural activities. The Committee invites the Government to include in its next report information on the impact of the measures taken to ensure that the Raizal communities have received the protection provided for in the Convention.

Protection of fundamental rights and physical restitution of collective territories. Afro-Colombian communities of the Curvaradó and Jiguamiandó river basins (department of Chocó). The Government indicates in the report received in September 2013 that the Ministry of the Interior coordinates and organizes the process for the restitution of lands of the Jiguamiandó and Curvaradó communities. In January 2013 progress was made with regard to: a self-conducted census of the communities; evictions of unauthorized occupants and new settlers; regularization and expansion of collective territory; prevention and protection measures; inter-institutional coordination; peaceful resolution of disputes; and granting of environmental licences. The Committee recalls that in its observation of 2012 it referred to the documents of the National Indigenous Organization of Colombia (ONIC), which had identified the ethnic groups worst affected by violence. The Committee invites the Government to include in its next report information on the implementation of Legislative Decree No. 4633 of December 2011 issuing measures for assistance, care, full reparation and restitution of lands to victims belonging to the Black, Afro-Colombian, Raizal and Palenquero communities. The Committee also invites the Government to continue to take the necessary steps to protect communities that have been subjected to violence, to ensure that all reported occurrences of murders and violence are investigated and that the perpetrators are brought to justice.

Articles 6 and 7 of the Convention. Legislation on consultation. The Government states that a proposal was submitted in October 2012 for a Bill concerning prior consultation but this was rejected by the indigenous organizations represented on the Standing Committee for Dialogue. In February 2013 a summit of indigenous organizations participating in the Standing Committee for Dialogue was held at which they rejected a statutory law in preference for another instrument, possibly a protocol. The Committee notes that the ANDI and the IOE agreed with the Constitutional Court that the Government is obliged to promote “effective and reasonable forums” for participation in matters which directly affect the indigenous communities. However, also agreeing with the guidance of the Constitutional Court, the employers’ organizations consider that if no agreement is reached or any agreement is blocked by an autonomous decision of the peoples consulted, there is no reason to hold back the legislative process or project in matters which are also in the general interest. Referring to its previous comments, the Committee: (i) asks the Government to include information in its next report on the steps taken to establish appropriate mechanisms for consultation and participation in conformity with the Convention, taking account of its general observation of 2010; (ii) reiterates its request to the Government to ensure that indigenous peoples are consulted and can participate in an appropriate manner through their representative institutions in the preparation of such mechanisms, so that they can express their views and affect the outcome of the process; and (iii) invites the Government to provide information on any use made of existing consultation and participation mechanisms pending the adoption of appropriate new procedures.

In a direct request, the Committee asks the Government to include information in its next report on progress made with regard to the protection of human rights and the physical restitution of the territories of Afro-Colombian communities, legislation on consultation, the consultations held by the Directorate for Prior Consultation and the Ministry of the Environment and Sustainable Development, and new developments in various disputes in the departments of Antioquia, Cauca and Chocó.

[The Government is asked to reply in detail to the present comments in 2015.]

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The Committee notes the Government’s report received in August 2012, which contains detailed information in reply to its observation of 2011. The Committee also notes the Government’s reply received in February 2012 to the observations made by the International Organisation of Employers (IOE) in October 2011. In addition, the Government sent a report in September 2012 containing a detailed reply to the issues raised by the Single Confederation of Workers (CUT) in March 2012. The Committee also noted the observations made by the National Employers’ Association of Colombia (ANDI) in September 2012, which received the support of the IOE; and the new observations from the CUT received in August 2012.

Communication from the International Organisation of Employers (IOE). In its report of August 2012 the Government indicates that it shares the concern expressed by the IOE in its communication of October 2011, regarding the fact that many aspects of the Convention are not reflected in the world of work. The Government states that such aspects are the responsibility of another government department, the Ministry of the Interior, which implies a more substantial commitment on the part of the State. The Committee notes that the Government understands that the obligations of the Convention are addressed to States and that the Government formulates its public policy accordingly. The Government states that companies must comply with the legislation which is adopted to give effect to the Convention. Recognizing the concern of the IOE in the report received in August 2012, the Government highlights the case law of the Constitutional Court, which has affirmed emphatically that the obligation to hold prior consultations arises in connection with those measures that can directly affect ethnic communities. The Government mentions Ruling No. C-366/11, issued on 11 May 2011, whereby the Constitutional Court decided to postpone by two years the declaration of unconstitutionality of Act No. 1382 of 2010 through which the Mining Code had been amended. The Committee invites the Government, when preparing its next report, to hold consultations with the social partners and indigenous organizations on the subjects referred to in the present observation and to include information on the results achieved by the measures adopted to give effect to each of the provisions of the Convention (Parts VII and VIII of the report form).

The Committee notes that the IOE has submitted observations in August 2012 on the application in law and practice of Articles 6, 7, 15 and 16 of the Convention concerning the requirement of consultation. In this regard, the IOE raises the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus of indigenous and tribal peoples, and the importance for the Committee to be aware of the consequences of the issue in relation to legal security, financial costs and certainty of both public and private investment. The IOE refers to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also states that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to include in its next report any comments that it deems appropriate on the observations made by the IOE.

Article 2 of the Convention. Coordinated and systematic action to protect the physical, social, cultural, economic and political integrity of indigenous and Afro-Colombian communities. In reply to the Committee’s previous comments, the Government indicates in its report received in August 2012 that pursuant to Decree No. 4912 of 26 December 2011, a prevention and protection programme was organized with a differential approach aimed at ethnic protection. The Committee notes that a special mechanism was defined for the protection of the territorial rights of ethnic groups which had been violated through violence and/or the negative impact of construction and/or operation of economic mega-projects involving monocultures, mining exploitation, tourism and dock work. Furthermore, following the instructions issued by the Constitutional Court in Order No. 004 of January 2009, the Ministry of the Interior also drew up a roadmap for the formulation of an ethnic protection plan. The Committee notes the summary chart indicating the status of the processes for the protection of each of the 34 indigenous peoples identified. The Committee observes that it already referred in previous comments to some of the difficulties experienced by indigenous peoples in relation to the Convention. The Committee invites the Government to include up-to-date information in its next report on the progress achieved in relation to the processes under way for the ethnic protection of the 34 identified indigenous peoples. The Government is also requested to send a copy of the publication mentioned in the report, namely the “Guide to the implementation of the preventive policy of the Public Prosecutor’s Office, in relation to the rights of ethnic groups, for the protection of the fundamental right to free and informed prior consultation”, published in April 2011.

Article 3. Human rights. In its previous comments the Committee welcomed the adoption of Act No. 1448 of June 2011 concerning compensation for victims and restitution of lands, the aim of which is to compensate the victims of armed conflict. In the communication received in March 2012, the CUT states that there was no prior consultation with the Black, Afro-Colombian, Palenquero and Raizal communities. The CUT reports on the meetings held between community representatives and the government authorities with a view to avoiding the unconstitutional nature of the decree intended to handle, compensate and restore the rights of victims. The Committee notes the detailed information sent by the Government in August and September 2012, in which it describes the process followed during 2011 up to the adoption of Legislative Decree No. 4633 of 3 December 2011, issuing measures for assistance, care, full reparation and restitution of territorial rights to victims belonging to indigenous peoples and communities. The Government indicates that plans for full collective reparation will be adopted with the participation of representatives of the communities. The Committee invites the Government to include information in its next report on the implementation of the plans for full collective reparation provided for in Legislative Decree No. 4633 (including for the Black, Afro-Colombian, Palenguero and Raizal communities), the participation of representatives of all the communities and the manner in which these measures have contributed towards restoring the rights established in the Convention.

Protection of fundamental rights and physical restitution of collective territories. Afro-Colombian communities of the Curvaradó and Jiguamiandó river basins (department of Chocó). In the comments that it has been making for many years, with reference to the various statements made by different trade union organizations, the Committee expressed its concern at the problems and serious deficiencies relating to the application of the Convention faced by the abovementioned Afro-Colombian communities. In the report received in August 2012, the Government indicates that the State is endeavouring to improve the situation regarding protection of the Jiguamiandó. Attached to the Government’s report is comprehensive documentation on the policy and security measures for the Jiguamiandó and Curvaradó communities. In a communication received in August 2012, the CUT refers to Order No. A-045 of 7 March 2012 issued by the Special Chamber for Enforcement of Ruling No. T-025 of 2004 and the instructions issued in its compliance orders of 2009 and 2010. In view of the serious situation, the Constitutional Court is calling for the adoption of new urgent protection measures and the establishment of a clear timetable of work to ensure full compliance with all the orders issued. The CUT also refers in its communication to recent studies by the National Indigenous Organization of Colombia (ONIC), which indicated that the worst affected ethnic groups in the first six months of 2012 were the Nasa-Paéz (17 murders), Emberá (15 murders) and Awa (five murders). According to these studies, a total of 54 indigenous persons were killed especially in the region of Cauca (26 per cent of all murders), while each of the departments of Nariño and Risaralda accounted for nearly 15 per cent of the killings. Indigenous peoples in the south and south-east of the country have been affected by the internal armed conflict between the armed forces and guerrilla groups and more recently paramilitary groups, drug traffickers and criminal gangs. The ANDI also establishes a direct link between the violence affecting indigenous communities and the actions of drug trafficking and of illegal armed groups on their territories. The ANDI states that the Government is taking action to prevent acts of violence and is constantly endeavouring to preserve the lives and customs of indigenous peoples. The Committee reiterates its concern about the persistence of a grave situation and invites the Government to include information in its next report on the efforts made and the results of the measures adopted to ensure the protection of the physical, social, cultural, economic and political integrity of indigenous and Afro-Colombian communities. The Committee also requests the Government to continue to take the necessary steps to protect the communities victims of violence, to ensure that all reported occurrences of murders and violence are investigated and that the perpetrators are brought to justice.

Article 6. Legislation on consultation. In the reports received in August and September 2012, the Government states that preliminary draft legislation concerning the right to consultation has been prepared with a view to being revised at a high-level meeting. As regards the Bill concerning indigenous territorial entities, negotiations are also continuing with contributions having been received from the Organization of Indigenous Peoples of Colombian Amazonia (OPIAC) and another from the ONIC. The Government also provides information on the Bill concerning lands and rural development. Furthermore, in May 2012, a new royalty regime and its prior consultation process were declared constitutional, by judgment C-317-2012 of the Constitutional Court. In its contribution of August 2012, the ANDI recalls that the obligation of consultation has the rank of a fundamental right and is therefore protected by tutela law (constitutional guarantees). The Directorate for Prior Consultation of the Under-Ministry for Participation and Equal Rights at the Ministry of the Interior has a group of 66 professionals for analysing the economic, environmental, social and cultural impact which may be suffered by an ethnic group – indigenous, Roma or minority (Black, Afro-Colombian, Raizal or Palenquero) – by the exploitation of natural resources within its territory. The Committee invites the Government to include up-to-date information in next report on:

• (i) the preparation of the draft legislation regulating prior consultation and the consultations actually held in this regard with the indigenous peoples concerned;
• (ii) any developments in the consultation processes conducted with indigenous peoples and the approval of the draft legislation mentioned in previous comments (on a regional environmental council, rural development, access to genetic resources and related traditional knowledge, indigenous territorial entities); and
• (iii) the measures to follow up on the institutionalization of the prior consultation mechanism in the National Development Plan 2010–14 with ethnic groups and the participation in that mechanism of the indigenous peoples concerned.

Article 15. Consultation before undertaking or authorizing any programme for the exploration or exploitation of existing resources on indigenous territories. The Committee notes the information provided by the Government stating that the Directorate for Prior Consultation had held, in 2011, 66 consultations throughout the national territory. The Government has ensured that the presence of communities on the land concerned is certified within 15 days where no verification is required and within 45 days where verification is required on the land concerned. In 2011, a total of 20,128 certificates were issued for the equivalent number of projects. The consultation processes take no longer than six months. In 2011, a total of 279 consultations were recorded for a total of 703 communities; 397 certificates were issued during the first half of 2012. The Committee invites the Government to include up-to-date information in its next report on the consultations held with a view to authorizing programmes for the exploitation of existing resources. Please indicate the manner in which it is ensured that the indigenous communities concerned participate in the benefits of such activities, in accordance with Article 15(2) of the Convention.

Consultation on exploration and exploitation projects in the Chidima reservation (department of Chocó). Mandé Norte project (departments of Antioquía and Chocó). In the communication transmitted to the Government in October 2011, the IOE had explicitly expressed its rejection of the request made by the Committee in the observation formulated in 2009 to suspend the exploitation and exploration of natural resources until consultations of the indigenous peoples who live in the Pescadito and Chidima reservations and in the Uranda Jiguamiandó reservation are held. In its reply to IOE’s comments, the Government indicated in February of 2012, its intention to comply with the orders of the Constitutional Court in paragraph 7 of the operative section of tutela Ruling No. T-129 of 3 March 2011. The Constitutional Court ordered the Ministry of the Interior and the Ministry of Justice, the Colombian Geological Service (Ingeominas), the Autonomous Regional Corporation of Chocó and the Ministry of the Environment, Housing and Territorial Development to suspend all mining exploration or similar activities, whether legal or illegal, which are being conducted or promoted under concession contracts concluded with any person who might thus affect the Emberá Katío indigenous communities on the Chidima and Pescadito reserves, until such time as the prior consultation process and the search for informed consent from the ethnic communities involved are exhausted. The Committee notes the information sent by the Government concerning the meetings held with a view to creating a rapprochement with the communities concerned. The Committee further notes the statement by the Directorate for Prior Consultation at the Ministry of the Interior that it intends to ensure that each consultation process constitutes an opportunity for the groups concerned to participate in an appropriate, efficient and effective manner in the projects, works or activities which, with their full and informed consent, are due to be undertaken on their ancestral territories. The Committee invites the Government to include information in its next report on the implementation of the orders issued under Constitutional Court tutela Ruling No. T-129 of March 2011 concerning the Chidima and Pescadito reserves. The Committee also invites the Government to include information on the follow-up given to Ruling No. T-769/09 of 29 October 2009, whereby the Constitutional Court granted protection of the right to prior consultation to the communities affected by a licence awarded as part of the Mandé Norte project for mining exploration and exploitation in the departments of Antioquía and Chocó.

Other disputes relating to mining resources. The Committee notes the communication from the CUT received in March 2012 and the Government’s reply received in September 2012, referring to the situation created in March 2006 as a result of lack of consultation when a licence for mining exploitation was granted for the extraction of gold from a rural plot with a surface area of some 99 hectares located in the corregimiento (administrative subdivision) of La Toma in the municipality of Suárez (department of Cauca). The CUT referred to Constitutional Court Ruling No. T-1045A/10 of 14 October 2010 issued in tutela proceedings initiated by the La Toma community council. The Constitutional Court reiterated its jurisprudence in relation to the scope and requirements of the form of prior consultation. The Constitutional Court, among other things, ordered the Ministry of the Interior to conduct, guarantee and coordinate prior consultation and ordered the suspension of mining exploitation activities. The Government indicates in its reply that for reasons of public order it has not been possible to continue with consultations in La Toma. The Committee would be grateful if the Government would provide information in its next report which will enable the Committee to examine the manner in which the rights of consultation and participation provided for in the Convention in cases of exploration and exploitation of natural resources in territories occupied by Afro-Colombian communities have been re-established. The Committee invites the Government to refer to the other disputes mentioned in previous comments and include up-to-date information on any further developments in its next report.

Representativeness. In relation to its previous comments, the Committee notes the information included by the Government in the report received in August 2012 stating that, in the event of any dispute concerning the representativeness of indigenous leaders, it would be the Standing Committee on Consultation which would settle such disputes since this is the national body for consultation in which representatives of indigenous organizations participate. The election processes within the indigenous communities are conducted in accordance with the customs and practices of the communities concerned.

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The Committee notes the Government’s reply of 12 November 2010 pertaining to the observations of the Union of Workers of the National Mining Enterprise “Minercol Ltda.” (SINTRAMINERCOL) dated 28 August 2010. The Committee also notes the Government’s replies, received at the Office on 7 and 22 October and 2 November 2011, to the observations of 30 August 2010 and 30 August 2011 by the Single Confederation of Workers (CUT) and the Confederation of Workers of Colombia (CTC).

The Committee also notes the communications of 31 August 2011 from SINTRAMINERCOL.

It also takes note of the communication of 31 August 2011 from the National Employers Association of Colombia (ANDI). The Committee likewise notes the observations of 19 October 2011 from the International Organisation of Employers (IOE). The Committee requests the Government to send its comments thereon.

The Committee also notes the report of the High-level Tripartite Mission that visited the country at the invitation of the Government in February 2011 and which refers, inter alia, to issues related to measures to combat violence.

In view of the abundant and detailed recent information supplied by the Government, particularly in the communications received on 22 October and 2 November, the Committee proposes to examine all the issues raised at its next session. At the present session, the Committee will examine only certain issues.

Articles 2 and 3 of the Convention. Coordinated and systematic policy to protect the rights of indigenous peoples. In its previous comments the Committee took note of the climate of violence in the country affecting among others the indigenous and Afro-Colombian communities. It notes that the observations submitted by the abovementioned organizations give an account of specific situations of violence, harassment and threats to indigenous peoples. The CUT and the CTC further assert that access to the legal system is difficult for indigenous peoples and that the response of state bodies to the complaints and offences committed against indigenous peoples is inadequate.

The Committee notes the information by the Government concerning the measures that it has been adopting to combat violence and, in particular, violence affecting the indigenous peoples. The Government also provides information on: (1) the preparation of national development plans; (2) the design and implementation of the Democratic Security Policy, in force since 2002; (3) the preparation of the National Action Plan for Human Rights; (4) the creation of the Committee on Regulation and Evaluation of Risks for Ethnic Groups, in which indigenous and Afro-Colombian representatives participate; and (5) the establishment of a programme for the protection of the fundamental rights of displaced indigenous women. The Government also refers to the preparation of a guarantee programme and to safeguard plans for 34 peoples in particular, which, according to the Constitutional Court (Resolution No. 4 of the Constitutional Court, noted by the Committee in its previous comments) are at serious risk of disappearing, both physically and culturally. The Government states that “a set of remedial and urgent actions, measures and instruments have been proposed to respond to the gravity of a situation in which the indigenous peoples of Colombia are facing impairment and massive violations of multiple rights and are in one way or another affected acutely by armed conflict and forced displacement”.

The Committee also notes that the Government provides detailed information on the investigations conducted by the Office of the Public Prosecutor with respect to the concrete cases referred to by the CUT and the CTC in their communications and, in particular, that an investigation procedure has been devised for instances of violations of the rights of indigenous peoples, that measures were adopted to combat impunity in such cases which include the possibility of reopening closed cases. The Committee also notes the information provided concerning the appointment of dedicated human rights prosecutors. The Government provides detailed information on the number of cases referred to the human rights unit of the Office of the Public Prosecutor. The Committee notes with interest that fact-finding commissions to investigate homicides in various communities have been appointed, which have enabled the offenders to be identified and has moved investigation forward; and that care has been provided for 40,256 victims, which include numerous members of the indigenous peoples.

The Committee welcomes the adoption of the Act on victims and the restitution of lands (Act No. 1448 of 10 June 2011), the objective of which is to compensate, restore and indemnify victims of the armed conflict in Colombia. The Committee also notes the Government’s indication that a Decree is being drafted to implement the Act, in consultation with indigenous peoples. The Committee hopes that the Decree will be in conformity with the Convention. It asks the Government to provide information in this regard.

While acknowledging the efforts made by the Government to improve the situation of violence in general and in particular against indigenous peoples, including their leaders, the Committee notes with concern that, according to the observations submitted by the abovementioned organizations and in view of the measures that the Government has had to take, the situation continues to be serious. The Committee accordingly requests the Government to continue its efforts in a coordinated and systematic manner, to ensure protection of the physical, social, cultural, economic and political integrity of the indigenous and Afro-Colombian communities and their members. The Committee further requests the Government to continue to take the necessary measures to ensure that the acts of violence reported are investigated.

Article 6. Legislation on consultations. In its observation of 2009 the Committee referred to the legislation in force concerning the right of consultation, which is not in line with the Convention in terms both of its content and of the adoption process. The Committee previously urged the Government to ensure the participation and consultation of indigenous peoples in the preparation of the provisions for regulating the consultation process. The Committee notes the indication in the observations from the ANDI that mechanisms, programmes and activities promoted by the State have been set up to ensure effective protection of the rights of indigenous peoples at national, departmental and municipal levels. ANDI adds that the right of prior consultation established in the National Constitution is a prerogative of the indigenous peoples which cannot affect the general interests of the nation or hamper sustainable social and economic development.

The Committee notes according to the CUT and the CTC, the Presidential Directive No. 001 of 2010 concerning consultation, the procedure was not the subject of consultation with the indigenous peoples. In this respect, the Committee notes the Government’s indication that a working group has been set up within the Ministry of the Interior on the subject of prior consultation and is drawing up preliminary draft legislation to regulate the fundamental right to prior consultation, which itself has to be submitted for consultation with the indigenous peoples. The Government also indicates that the Presidential Directive contains instructions for the executive authority concerning the consultation procedure. The Government adds that the existing legal framework establishes the obligation of prior consultation and points out that recent Decree No. 2893 of 2011 provides that the Directorate for Indigenous, Roma and Minority Affairs shall have the function of coordinating and implementing the prior consultation processes relating to the presentation of legislative and administrative initiatives at national level. The Directorate has already adopted measures with a view to undertaking consultations on various items of draft legislation, namely: the Bill on levies; the Bill on the regional environmental council; the Bill on rural development; the Legislative Decree on victims and land restitution; the decree on access to genetic resources and related traditional knowledge; and the Bill on territorial entities and levies. The Government also indicates that the 2010–14 Development Plan provides for institutionalization of the prior consultation mechanism.

The Committee notes in particular that the Government, with the participation of the Vice-President of the country, is undertaking consultation on different issues with the indigenous communities and has requested the Office to participate as an observer in these consultations.

The Committee requests the Government to provide information in its next report on the following matters:

• (i) the progress made on the preliminary draft of the bill concerning the right to consultation which is due to be submitted to the indigenous peoples and the state body which is responsible for that process;
• (ii) developments in the processes implemented by the Directorate for Indigenous, Roma and Minority Affairs for the consultation of the indigenous peoples in relation to the various pieces of draft legislation mentioned above; and
• (iii) the measures taken with a view to the institutionalization of the mechanism for prior consultation and the participation of the indigenous peoples in that process.

Article 15. Consultation regarding exploration and exploitation projects in indigenous territories. In its previous comments, the Committee noted the existence of a number of disputes between the indigenous communities, the State and private companies linked to projects for the exploration and exploitation of natural resources in which it is alleged that adequate consultation of the indigenous peoples affected by those projects have not been undertaken. The Committee notes with interest recent Rulings T-769 of 2009 and T-129 of 2011 in which the Constitutional Court referred to the need to undertake consultations with the indigenous peoples concerning projects which may directly affect their rights and established the requirements to be fulfilled by such consultations. In this respect, taking account of the decisions of the Constitutional Court, the Committee requests the Government to take the necessary measures to ensure that, when a project for the exploration and exploitation of natural resources in territories traditionally occupied by indigenous peoples is planned, consultations are held with the indigenous peoples concerned as required by the Convention. On this particular issue, the Committee draws the attention of the Government and the social partners to its general observation of 2010.

Representativeness. The Committee notes the references in the observations from the CGT, CUT, CTC and SINTRAMINERCOL to problems of representativeness concerning some of the leaders representing the Afro-Colombian communities. The Committee notes that the Government’s report does not contain any specific information on this subject. The Committee recalls that the principle of representativeness is a key component in the obligation of consultation. Even though it may be difficult in many cases to determine who represents a community in particular, the Committee considers that if there is no adequate consultation process with the indigenous or tribal institutions or organizations with are truly representative of the communities affected, the consultations held would not comply with the requirements of the Convention. The Committee therefore requests the Government to indicate whether there are reasonable and objective criteria established at national level, in consultation with the indigenous peoples concerned, for determining the representativeness of the leaders of the indigenous peoples and what measures are taken in the event of any dispute to identify those who actually represent the communities.

[The Government is asked to reply in detail to the present comments in 2012.]

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The Committee notes the Government’s reply to the comments sent by the International Trade Union Confederation (ITUC) on 31 August 2009 and those of the Union of Workers of the National Mining Enterprise “Minercol Ltda.” (SINTRAMINERCOL) received on 28 August 2010. The Committee also notes the comments of the General Confederation of Workers (CGT) of 3 June 2010 and the comments of the Single Confederation of Workers (CUT) and the Confederation of Workers of Colombia (CTC) of 30 August 2010, which refer to pending issues. It also notes the communication by the National Employers’ Association of Colombia (ANDI), received on 2 September 2010. The Committee requests the Government to provide its comments in this regard.

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The Committee notes: (i) the communication of 27 August 2009 from the Workers’ Trade Union Confederation for the Oil Industry (USO), sent to the Government on 31 August 2009; (ii) the communication of 28 August 2009 from the Union of Workers of the National Mining Enterprise “MINERCOL Ltda.” (SINTRAMINERCOL), sent to the Government on 14 September 2009; and (iii) the communication of 31 August 2009 from the International Trade Union Confederation (ITUC), sent to the Government on 1 September 2009. The Committee observes that no comments have as yet been received from the Government in response to these communications.

Article 6 of the Convention. Consultation. The Committee notes that, according to Resolution No. 3598 of 2009, the Working Party on Prior Consultation, which answers to the Ministry of the Interior and Justice, has responsibility for “coordinating the carrying out of prior consultation with ethnic groups for any development projects that affect them”. The Committee reminds the Government that the right of indigenous and tribal peoples to be consulted, laid down in Article 6 of the Convention, must also be observed when the consultation process is being devised. The Committee accordingly asks the Government to provide information on the work of the abovementioned Working Party and the manner in which the consultation and participation of the peoples covered by the Convention is ensured in the carrying out of consultation processes.

Article 7. Development plans. The Committee notes that, according to the Government, the CONPES (a document by the National Council on Economic and Social Policy) is being prepared for the Amazon area of Colombia. The Committee requests the Government to ensure the participation of the peoples concerned in the preparation of the abovementioned document and to provide information on this matter. Please also report on the participation of the peoples covered by the Convention in the preparation and implementation of the CONPES 2007 for the Pacific area of Colombia.

Article 14. The Wounaan people. The Committee notes the information sent by the USO in its communication of 2009 concerning the situation of the Wounaan people of Join Phubuur. According to the USO, the Wounaan people has returned to its ancestral land in the River Cacarica Basin in what is today known as the Katíos Natural Reserve (PNNK) and is seeking recognition of its right to the land. As a means of consolidating its return, the Wounaan community has proposed to the National Parks System (SNP) that it remain in the PNNK as an environmental authority, but the proposal has gone unanswered and the measures taken by the state bodies involved have been geared to the Wounaan’s abandonment of the area. The Committee reminds the Government that, in accordance with Article 14(2) of the Convention, it is required to take steps as necessary to identify the lands which the peoples concerned traditionally occupy. It accordingly asks the Government to report on the situation of the Wounaan people and to provide information on the measures taken to establish the rights of this people over the area they claim.

Articles 6, 7 and 15. Consultation, participation and natural resources. The Committee requests the Government to provide further information on the situation of the U’wa people, including information on the Sirirí/Catleya oil block seismic exploration project.

Articles 24 and 25. Health. The Committee requests the Government to provide information on the functioning of the Indigenous Health Promotion Entities (EPSIs) and the implementation of the Collective Intervention Public Health Plan, which, according to the provisions of Decree No. 3039 of 2007, will allow participation by the communities in the formulation, monitoring and evaluation of health plans.

Articles 26–31. Education. The Committee requests the Government to provide information on the activities of the Ministry of Culture’s Populations Directorate, created by Decree No. 4827 of 2008, together with information on the ethnic education policy of the Ministry of National Education, including particulars of the measures taken to ensure participation of Colombia’s indigenous and tribal peoples in the formulation and implementation of education programmes and cultural policies concerning them. Please also provide information on the Programme for the Protection of Ethno-linguistic Diversity.

The Committee notes that, according to the ITUC’s observations concerning the Embera Katío people of Alto Sinú, “the indigenous authorities have constantly complained of systematic non-compliance by the departmental and municipal authorities when it comes to assigning the necessary resources and hiring appropriate personnel in the interests of effectively ensuring the communities’ rights in this area”, namely, education and health. The Committee requests the Government to provide information on the matter and to take the necessary steps to remedy the situation.

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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.]

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Article 1 of the Convention. According to the Government’s report, the 2005 census conducted by the National Administrative Department for Statistics shows that Colombia has a population of 42 million people, nearly 14 per cent of whom recognize themselves as belonging to indigenous, Afro-Colombian or Roma peoples. It also shows that the indigenous population is made up of 1,378,884 persons, 78 per cent of whom live in rural areas, and that 4,261,966 persons recognize themselves as black or Afro-Colombian (including the Palenquera and Raizal peoples) and that they account for 10.6 per cent of the total population of Colombia. The Committee requests the Government to continue to provide statistical information regarding the peoples covered by the Convention.

Article 6. Consultation. Legislation. The Committee notes that the report gives detailed information on the application of Decree No. 1320 of 1998 on consultation, issued under section 76 of Act No. 99 of 1993. The Committee reiterates that according to two Governing Body reports on representations, Decree No. 1320 is not consistent with Convention No. 169 in terms either of its elaboration, since there was no consultation or participation with the peoples covered by the Convention, or of its content. The Committee refers to its observation and again reminds the Government that it may seek technical assistance from the Office.

Article 7. Development plans. The Committee notes that according to the report, the National Development Plan “Estado Comunitario: Desarollo para Todos” 2006–10, approved by Act No. 1151 of 24 July 2007 sets as one of its objectives a policy which accommodates, among other things, the formulation of specific programmes relating to ethnic groups and intercultural relations, for which strategies will be developed for the benefit of all ethnic groups (the indigenous, Afro-Colombian, Raizales and Roma or Gypsy peoples). The Committee also notes that the National Department for Planning (NDP), has promoted the elaboration and establishment of strategies to develop national public policies in social, economic and environmental fields with a view to fostering equality and combating discrimination, through a legal instrument called CONPES (document of the National Council on Economic and Social Policy). The Committee notes that CONPES 2007 “State Policy for the Colombian Pacific Area” seeks renewed advancement of the Afro-Colombian people by integrating the Pacific region into national and international development as part of a strategic programme for economic and social revival. The Committee notes that according to the report, the highest concentration of Afro-Colombian peoples is in the Pacific region (Chocó, Valle del Cauca, Cauca and Nariño) and reminds the Government that according to Article 7(1) of the Convention “the peoples concerned…shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.” The Committee accordingly asks the Government to ensure such participation for the peoples covered by the Convention that inhabit the area covered by CONPES 2007 and to provide information on this matter, and requests it to include all the peoples covered by the Convention in the relevant plans in order to enable them to participate fully in building the model for development which may affect them directly.

Participation, consultation and natural resources. The Committee requests the Government to provide information on the status of the exploration and exploitation of natural resources on lands traditionally occupied by the U’wa people. It refers the Government in this connection to its earlier comments on this subject, including those of 2006, and asks the Government to provide information on the matter.

Articles 24 and 25 of the Convention. Health. According to the report, the Ministry of Social Welfare has embarked on a series of measures with a view to defining a social welfare policy for the various ethnic groups, and in the case of the indigenous and Roma peoples, the information has been endorsed by those concerned. The Ministry also conducted a study with a view to devising strategies for the provision of differential care for displaced indigenous and Afro-Colombian peoples. Furthermore, Decree No. 3039 of 2007 provides that the Public Health Plan for Collective Care must be so formulated as to comply with the principle of respect for the cultural and ethnic diversity of the country “through consultation and coordination with the communities, guaranteeing their participation in the formulation, monitoring and evaluation of health plans.” Furthermore, the Ministry held a series of meetings with the Indigenous Health Board with a view to enacting regulations under Act No. 691 of 2001 allowing the participation of indigenous peoples in the comprehensive health system. The Committee takes note of the measures undertaken by the Ministry of Social Welfare and asks the Government to continue to provide information in this regard.

Article 33. In its observation, the Committee noted that according to a communication from the Workers’ Trade Union, the matter of the three separate plots making up the Chidima reservation remains unresolved because no provision was made in the budget to that end. Attached to the abovementioned communication is a letter from INCODER, stating that “there is no budgetary provision for regularization”. The Committee reminds the Government that Article 33 of the Convention provides that the government authority responsible for the matters covered in the Convention shall ensure that agencies or other appropriate mechanisms are in place aiming at the administration of programmes affecting the peoples concerned and that “they have the means necessary for the proper fulfilment of the functions assigned to them.” Since it has addressed the matter of the Chidima reservation in its observation on the application of the Convention, the Committee calls on the Government to provide the mechanisms and agencies referred to in Article 33 of the Convention with the means necessary for the proper fulfilment of their functions, and to provide information on the measures taken in this respect.

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In its observation of 2007, the Committee noted a communication from the Workers’ Trade Union Confederation for the Oil Industry (USO), received on 31 August 2007, following up on a situation under consideration by the Committee pertaining to the application of the Convention to the Afro-decendent communities of Curvaradó and Jiguamandó in the Pacific coastal area. The abovementioned communication was prepared in conjunction with the Curvaradó and Jiguamandó community councils, the Interdenominational Justice and Peace Commission, the Colombian Commission of Jurists and the José Alvear Restrepo Lawyers Collective. On 28 August 2008, the Office received a further communication from the USO, forwarded to the Government on 9 September 2008. The Committee notes that a reply has not yet been received. The Committee notes with regret that the Government makes no comment on the serious issues raised by the Committee in its observation of 2007, or on the USO’s communication of 2007.

Observation of 2007: Jiguamandó and Curvaradó

In its observation of 2007, of the matters raised by the USO, the Committee examined only those which it deemed to be serious and urgent and which could have irreversible consequences, and sought the Government’s views before examining the communication as a whole. The Committee expressed deep concern at the allegations of threats and violations of the right to life and the personal integrity of the communities’ inhabitants. It referred in particular to the following allegations contained in the communication: (1) the presence of paramilitary groups in the community territory, including those known as “Aguilas negras” and “Convivir” and the assertion that they are tolerated by the official forces, especially army brigades XV and XVII. According to the USO, the paramilitary forces established themselves in community lands in 2007 and have made threats against the inhabitants of the communities, accusing them of belonging to the guerrilla forces which, given the situation in the country, places their lives at grave risk. The communication also indicates that intimidation of this kind is a result of the cultivation of the African palm and that anyone obstructing the production of palm oil in Curvaradó and Jiguamandó would be “cleaned up”; (2) impunity for violations of the fundamental rights of members of the communities such as the disappearance and murder in 2005 of Orlando Valencia, an Afro-Colombian Jiguamandó leader; (3) the “judicial persecution” of the victims of violations of human rights and members of supporting organizations. The USO further indicates that although guerrilla presence in the region is sporadic, it must be remembered that the communities are civilian populations and that they have decided to establish humanitarian zones, which have been recognized by the Inter-American Court of Human Rights. In 2007, the Committee urged the Government to take specific measures and provide information. The Committee again expresses deep and growing concern at the USO’s allegations and at the lack of a response on the Government’s part to the allegations concerning the right to life of the indigenous peoples. It again urges the Government to take without delay all necessary steps to guarantee the life and physical and moral integrity of the members of the communities, to put an end to all persecution, threats or intimidation and to ensure implementation of the rights laid down in the Convention in a climate of security. It again asks the Government to provide information on the measures taken on these matters and to reply to the comments the Committee made in its last observation. In commenting on the USO’s communication of 2007, the Government is asked to provide detailed information on the manner in which the provisions of Article 14 of the Convention are applied with respect to the lands of the Jiguamandó and Curvaradó communities.

Communication of 2008 from the USO

In its communication, the USO alleges that the Government is in breach of the provisions of the Convention in its treatment of the Emberá Katío y Dobida peoples, who live on the Pescadito and Chidima reservations in the municipality of Acandi and belong to the association of Kuna, Emberá and Katío Indigenous Councils of North Chocó (ACIKEK). The USO asserts that the Emberá people belong to a large indigenous family known as the Chocó and lists the areas in which they live. The Emberá people include the Katío and Dobida families. The Emberá Dobida live on riverbanks and their main activity is fishing. The Emberá Katío live in wooded mountain areas.

Murder and forced displacement of indigenous people. The USO refers in particular to acts of violence ranging from death threats to murder and including forced displacement, violation of the right to land, failure to consult, prospecting for natural resources without consultation or participation. The USO refers in general to an increase in the forced displacement of indigenous peoples and cites documents of the United Nations High Commissioner for Refugees reporting that between 1996 and 2002, 997 indigenous persons were murdered and 16,362 forcibly displaced, and that between 2004–07, 519 were murdered and 30,000 forcibly displaced. Regarding the Pescadito and Chidima reservations, it refers specifically to instances of displacements and of indigenous people who attempted to enter Panama, where there are inhabitants belonging to the same people. Some were unsuccessful, while others obtained refugee status.

Lands. Chidima and Pescadito reservations. The USO states that in 2001, the Colombian Institute for Agrarian Reform (INCORA) issued resolutions Nos 005 and 006 establishing the indigenous reservations known as Chidima, for the Katío indigenous people, and Pescadito for the Dobida. The USO reports that “reservations” have been set up for the Dobida that are so small that, according to indigenous witnesses, “it’s like being in jail”. Furthermore, the Chidima reservation consists of three separate plots that are non-adjacent, so that it is easy for settlers to invade the third one. The USO reports that settlers arrived with dredgers and power saws, burned the grass and issued death threats. The Katío, claiming that they have traditionally occupied the entire territory including the areas between the plots, have asked that the three plots be combined in a single reservation, and although the Government at first undertook to do this, subsequently nothing was done. The USO attaches a letter from the Colombian Institute of Rural Development (INCODER), stating that “there is no budget for regularization for 2006”. The USO reports that when the indigenous people sought protection against such invasion, INCODER replied that once a title has been issued for the reservation, it would be up to the indigenous communities to prevent the territory from being invaded. The Committee reminds the Government that according to Article 14(2), it has a duty to ensure effective protection of the rights of ownership and possession of the indigenous people and that pursuant to Article 18, it must take measures to prevent unauthorized intrusion upon, or use of, the lands of the peoples concerned. Consequently, the Committee urges the Government to take steps as a matter of urgency to put an end to all intrusion upon the lands of the Katío and Dobida peoples, particularly plot 3 of the Chidima reservation, where, according to the USO, there is currently intrusion, and to provide information on the measures taken in this regard. It also asks the Government to take measures to join the three plots into one, in so as far as there has been traditional occupation of the land concerned, in order to make the reservation viable, and to provide information on the measures taken in this regard.

Natural resources and development projects. The USO refers to the construction of new roads that cross the Chidima and Pescadito reservations; to a bi-national electricity interconnection, on which field studies are being carried out; and to a mining concession in the municipality of Acandí covering an area of 40,000 hectares. For none of these projects has there been participation and consultation. The USO also states that according to the Government, decree No. 1320 on consultation requires prior consultation only for exploitation, and allows prospecting and exploration without consultation. The Committee recalls that Article 7 of the Convention provides that the peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use and shall participate in the formulation, implementation, and evaluation of plans and programmes for national and regional development which may affect them directly. In the case of natural resources and development projects, the requirement to consult must be part of the broader process of participation set forth in Article 7 of the Convention. In the case of natural resources belonging to the State, the consultation procedure set in Article 15(2) shall apply to lands within the meaning of Article 13(2) (total environment of the areas which the peoples concerned occupy or otherwise use), and not only reservations. The Committee recalls that pursuant to Article 14, Governments have a duty to identify the lands which the peoples concerned traditionally occupy and to guarantee effective protection of their rights of ownership and possession. Accordingly, in the case of the reservations, which cover not the total area but only a delimited part of it to which the indigenous peoples hold title, pursuant to Article 14 the Government should guarantee the rights of ownership and possession and all other rights deriving therefrom, and not only the right to consultation and participation. The Committee accordingly asks the Government fully to guarantee effective protection of the rights of ownership and possession of the peoples concerned, as required by Article 14(2) of the Convention, to take steps to protect the other lands traditionally occupied with a view to recognition of ownership and possession, and to suspend activities arising from concessions granted for exploration and/or infrastructure projects, pending the enforcement of Articles 6, 7 and 15 of the Convention. The Government is asked to provide information on the measures taken in this regard.

Decree No. 1320. The Committee recalls that at its 282nd Session (November 2001), the Governing Body found the process of prior consultation as established in Decree No. 1320 to be inconsistent with Articles 2, 6, 7 and 15 of the Convention, and requested the Government to amend Decree No. 1320 of 1998 so as to align it with the Convention, in consultation with, and with the active participation of, the representatives of the indigenous peoples of Colombia, in accordance with the provisions of the Convention (document GB.282/14/3, paragraphs 79 and 94). The Committee notes with regret that in 2008 the Government has still not applied the Governing Body’s recommendation. It therefore urges the Government to do so and to provide information on the measures taken in this regard.

The Committee reiterates its request of 2007 for information about the implementation of the Governing Body’s recommendations made in November 2001 in two reports it adopted on representations alleging non-compliance with the Convention by the Government of Colombia (GB.282/14/3 and GB.282/14/4).

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

[The Government is asked to reply in detail to the present comments in 2009.]

 

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1. The Committee notes the communication from the Workers’ Trade Union Confederation for the Oil Industry (USO), received on 31 August 2007, in relation to the comments made by the Committee in its last observation on the request concerning the application of the Convention to the communities of African extraction of Curvaradó and Jiguamandó. The communication was prepared jointly with the community councils of the Curvaradó and the Jiguamandó, the Inter-denominational Justice and Peace Commission, the Colombian Commission of Jurists and the José Alvear Restrepo Lawyers’ Collective. The Committee notes that the communication was forwarded to the Government on 11 September 2007 and will examine it in detail at its next session, together with any comments that the Government considers it appropriate to make.

2. Nevertheless, due to the gravity and urgency of certain issues, and the irreversible consequences that certain situations referred to in the allegations may have, the Committee expresses its deep concern at the allegations of threats and violations of the right to life and the personal integrity of the inhabitants of these communities. The Committee refers in particular to the following allegations contained in the communication: (1) the presence of paramilitary groups in the community territory, including those known as Aguilas negras and Convivir and the allegation that they are tolerated by the official forces, and particularly army brigades XV and XVII. The paramilitary forces are reported to have established themselves in community lands in 2007 and to have made threats and accusations against the inhabitants of the communities of belonging to the guerrilla which, in view of the situation in the country, places their life at grave risk. The communication indicates that this intimidation is carried out as a result of the cultivation of the African palm and that all those obstructing the cultivation of palm oil in Curvaradó and Jiguamandó were threatened with being “cleaned up”; (2) impunity with regard to violations of the fundamental rights of members of the communities, such as the disappearance and murder in 2005 of Orlando Valencia, the leader of African extraction of Jiguamandó; (3) the “judicial persecution” of victims of human rights violations and the members of supporting organizations. The communication indicates that, even though there is sporadic guerrilla presence in the region, the communities are a civilian population and have decided to establish humanitarian zones which have been recognized by the Inter-American Court of Human Rights. The Committee urges the Government to take all the necessary measures without delay to guarantee the life and the physical and moral integrity of the members of the communities, to ensure that any persecution, threats or intimidation ceases and to ensure that effect can be given to the rights set out in the Convention in a climate of security. The Committee requests the Government to provide information on the measures adopted in this respect and to reply to the comments made by the Committee in its last observation. The Committee requests the Government, when making its comments on the USO communication, to provide detailed information on the manner in which measures are taken to give effect to Article 14 of the Convention respecting the lands of the Jiguamandó and Curvaradó communities.

3. Taking into account the fact that the full reports on the application of the Convention will be examined next year, the Committee requests the Government to provide information on the implementation of the recommendations made by the Governing Body in November 2001 in the two reports adopted on the representations alleging failure to comply with the Convention by the Government of Colombia (GB.282/14/3 and GB.282/14/4).

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1. In 2005, the Committee took note of a communication from the Workers’ Trade Union Confederation (USO), received on 31 August 2005 and sent to the Government on 7 September 2005, concerning the situation of the Curbaradó and Jiguamiandó, which are communities of African extraction. The Committee noted that the Government had not replied to the USO’s observations. It also asked the Government and the USO to specify whether the abovementioned communities identify themselves as tribal communities within the meaning of Article 1, paragraph 1(a), of the Convention for the purpose of determining whether they are covered by the Convention. The Committee notes that this year, the USO sent observations which were received on 31 August and 27 September and sent to the Government on 3 October 2006. It also notes the information sent by the Government on the status of consultations with the U’wa people, received on 3 October 2006 and the Government’s report, received on 15 November 2006. In view of the late arrival of the USO’s observations and the Government’s report, as far as the situation of the Curbaradó and Jiguamiandó communities is concerned the Committee has examined only those comments that address the matter of the coverage of the Convention on which it requested further information from the USO and from the Government, and the direct consequences of the definition of these peoples. It will examine the other matters in its future comments.

Communities of African extraction: the Curbaradó
and Jiguamiandó

2. Article 1 of the Convention. Coverage. In 2005, the Committee expressed the view that in the light of the information sent by the USO, the black communities of Curbaradó and Jiguamiandó appeared to fulfil the requirements set in Article 1, paragraph 1(a), of the Convention, according to which the Convention applies to “tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations”. Furthermore, from the information provided in the communication, the representatives of the community councils of the Curbaradó and the Jiguamiandó had participated in preparing the USO’s observations, and it appeared that in seeking application of the Convention to their communities, these peoples identify themselves as being tribal. The Committee further noted that the definition of “black community” in Act No. 70 appeared to coincide with the definition of tribal peoples in the Convention. It accordingly asked the Government and the USO to specify whether these communities identify themselves as tribal within the meaning of Article 1, paragraph 1(a), and requested the Government to give its reasons if it deems that these communities are not tribal peoples within the meaning of the Convention. The Committee notes that the USO confirmed that the communities identify themselves as tribal. It also notes with satisfaction the Government’s statement that the Curbaradó and Jiguamiandó communities, which are of African extraction, are covered by the Convention. The Committee requests the Government to state whether all the communities of African extraction recognized by Act No. 70 of 1993 are covered by the Convention.

Lands and natural resources

3. In its comments of 2005, the Committee noted that, according to the USO, since 2001 rights abuses against these communities have been related to the extensive cultivation of oil palms and African palms, and stock-raising projects, which have been undertaken despite the existence of collective title to these lands; and that the “dispossession of the lands of these communities has also been achieved through unlawful legal acts by palm-growing enterprises by means, among others, of the conclusion of contracts in violation of Act No. 70, fraudulent misrepresentation, deceit, the drawing up of legal acts which purportedly give the approval of these communities, the misrepresentation of the functions of duly recognized and registered representatives of the communities, agreements for the establishment of agricultural undertakings facilitated by public officials who are members of the armed forces, coercion and direct threats against occupants, who are frequently compelled to sell their property through fear or the absence of any other beneficial option”. The USO referred to intensive deforestation for the cultivation of African palms and stock-raising, observing that these have given rise to devastating social and environmental damage. It also reported that the Colombian Rural Development Institute (INCODER) estimated that 4,993 hectares of the collective lands of the Curbaradó and the Jiguamiandó had been taken over for palm cultivation; that 810 hectares were used for stock-raising; that 93 per cent of the area under palm cultivation was located in their collective lands, and the remaining 7 per cent consisted of private property, awarded by the Colombian Agrarian Reform Institute (INCORA) before Act No. 70 took effect.

4. In its comments on these matters, the Committee observed that if it was confirmed that these communities are covered by the Convention, Articles 6, 7 and 15 (consultations and natural resources) and Articles 13 to 19 (land) should apply. The Committee referred in particular to the right of these peoples to return to their traditional lands as soon as the grounds for relocation and transfer ceased to exist (Article 16, paragraph 3), and to the measures envisaged by the Government against any unauthorized intrusion in the lands of the peoples concerned for any unauthorized use by persons alien to them (Article 18).

5. Lands. The Committee notes the measures taken by the Government to demarcate collective territories of the community councils of Jiguamiandó and Curbaradó, which aim in particular at recovering lands improperly occupied by reviewing unlawfully granted titles or rights. It notes in particular that the State Council determined the validity of titles granted by INCORA registered in the public deeds registry offices “prior to the deadline for submission of the application for collective title for the black communities”. Please provide further details and indicate the consequences of this decision. The Committee points out that the Convention protects not only lands that the peoples concerned already own but also lands that they traditionally occupy; and that according to the Convention, governments must take the necessary steps to determine the lands which the peoples concerned occupy traditionally and to guarantee effective protection of their rights of ownership and possession (Article 14, paragraph 2). The provisions of the Convention that address land issues, more specifically Articles 13 and 14, must be construed in the context of the general policy referred to in Article 2, paragraph 1, namely that governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity. In practice, these provisions must be implemented in parallel with those on consultation set forth in Article 6. Consequently, the Committee hopes that the Government will give full effect to the abovementioned Articles in demarcating lands traditionally occupied by the abovementioned communities. It asks the Government to keep it informed regarding this matter, indicating in particular the manner in which the communities participate in this process and giving particulars of the results of the measures adopted to recover the lands improperly occupied by individuals who are not members of the communities.

6. The Committee notes with interest Decision No. 0482 of 18 April 2005 by the Regional Autonomous Corporation for the Sustainable Development of Chocó ordering the “suspension of all activities carried on for the purpose of establishing the cultivation of either the African palm or the oil palm within the jurisdiction of the Department of Chocó (…) specifically in the areas over which the Jiguamiandó and Curbaradó communities have collective title (…), without the appropriate authorization or concession granted by the primary regional environmental authority – CODECHOCO”. The Committee points out that according to Article 15, paragraph 2, “governments shall establish or maintain procedures through which they shall consult these 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 such resources pertaining to their lands”. The Committee accordingly asks the Government to carry out consultations with the peoples concerned regarding the authorizations or concessions mentioned above and those for stock-raising, deforestation or logging projects, having regard to the procedure established in Article 6, to determine whether and to what extent the peoples’ interests would be prejudiced, as required by Article 15, paragraph 2. It trusts that the Government will do its utmost to carry out the studies provided for in Article 7 in cooperation with the peoples concerned. It also invites the Government to examine the possibility of bringing the relevant legislation into conformity with the Convention, and to provide detailed information on this matter in its next report.

7. Consultations. The Committee notes that the Government has initiated a process to move forward the regulation of various titles pursuant to Act No. 70 of 1993, with the participation of representatives of the community councils that hold collective titles. The Committee points out that the provisions of the Convention, including Article 6, apply to indigenous and tribal peoples as defined in Article 1. The Committee, therefore, asks the Government to undertake consultations with all the peoples involved in the process to adopt regulations with regard to regulate Act No. 70, without imposing any requirements such as ownership of the lands they traditionally occupy or membership of the community council. Please keep the Committee informed regarding this matter and on any progress made in the regulation process.

The U’wa people

8. Articles 6 and 15, paragraph 2. The Committee notes the “Report on the Prior Consultation of the U’wa People” produced by the Directorate of Ethnic Groups of the Ministry of the Interior and Justice. The report indicates the measures taken by the Government and ECOPETROL S.A. for the purpose of holding prior consultations with the Association of Indigenous Councils and Traditional Authorities of the Department of Arauca – ASCATIDAR – and the Association of U’wa Councils and Traditional Authorities – ASOU’WA. The Committee notes that in both cases there have been difficulties in establishing and maintaining a constructive dialogue between the Government and the peoples concerned in adopting decisions and that the process has been going on for 14 years during which acts of violence have been committed against the U’wa community. The Committee points out that a climate of mutual trust is essential to any consultations and particularly in the present context where indigenous and tribal peoples mistrust state institutions and feel marginalized, due to complex realities that go back a very long way and which have yet to be overcome. Accordingly, bearing in mind that the Government requested technical assistance from the Office to facilitate consultations with the U’wa people pursuant to recommendations made in the report of the tripartite committee set up to examine a representation which the Governing Body adopted at its 282nd Session (November 2001), the Committee notes that the Office has again stated its readiness to help Colombia to give better effect to the recommendations of the supervisory bodies.

The Committee hopes that, with the technical assistance of the Office, it will be possible to instil the necessary trust to facilitate consultations. It recalls that, 14 years having gone by, the committee set up to examine the representation expressed concern in its report “at the information received from the Central Unitary Workers’ Union (CUT) and other reliable sources suggesting the repeated use of force against the U’wa community by government soldiers and police” (paragraph 92). The Committee points out that given the lack of trust, such assistance ought to take place as part of a process and that a simple meeting would not suffice. The Committee invites the Government to accept the technical assistance of the Office and hopes that it will provide information on the follow-up to the present comment.

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A. Communication of the Workers’ Trade Union Confederation

1. The Committee notes the comments of the Workers’ Trade Union Confederation (USO) on the application of the Convention, which were received on 31 August and transmitted to the Government on 7 September 2005. The Committee notes that the Government’s observations on these comments have not yet been received. The USO indicates that the communication has the agreement and support of the representatives of the community councils of the Curbaradó and Jiguamiandó and that it was prepared jointly with the Inter-denominational Justice and Peace Commission, the Colombian Commission of Jurists and the José Alvear Restrepo Collective Corporation of Lawyers. Two additional CD-ROMs were subsequently received which, due to their late arrival, are not examined in the present observation, but have been forwarded to the Government for its consideration.

2. Article 1 of the Convention. Individual scope of application. The first part of the communication refers to discrimination against persons of African extraction, whose illiteracy rate is three times higher than that of the rest of the country, among whom the child mortality rate is 151 per thousand compared with a national average of 39 per thousand, and 76 per cent of whom live in conditions of extreme poverty. According to the communication, communities of African extraction in Colombia account for 26.83 per cent of the total population. However, most of the communication is related to two communities of African extraction, namely the Curbaradó and Jiguamiandó in the municipality of Carmen del Darién, Department of Chocó, in relation to their forced displacement and the extensive cultivation of the African palm in violation of their rights to the land and without prior consultation. The communication adds that the Curbaradó and Jiguamiandó communities fulfil the criteria for a tribal people set forth in the Convention, are composed of 2,125 persons and 515 families, a majority of whom are of African extraction, and that they have used their land in accordance with their ancestral and traditional practices. The communication indicates that Act No. 70, of 1993, provides in section 2(5) that "the black community consists of the combined families of Afro-Colombian extraction who have their own culture, a common history and their own traditions and customs in the context of the relation between occupied and rural areas, who demonstrate and maintain awareness of identity which distinguishes them from other ethnic groups". Reference is also made to the case law of the Constitutional Court (Ruling T-955, M.P.: Alvaro Tafur Galvis, 17 October 2003). In that ruling, the constitutional court found that the right of black communities to their collective lands "is based on the Political Charter and ILO Convention No. 169, without prejudice to the delimitation of their lands referred to in Act No. 70 (...), the concerned right to collective ownership includes and has always included the faculty of black communities to use, enjoy and dispose of the renewable natural resources existing on their lands in accordance with the criteria of sustainability (...). That is, since 1967, by virtue of Act No. 31, the right to collective ownership of the lands which they and their ancestors have occupied is recognized for national black communities, as tribal peoples". The USO also notes that fundamental aspects of the Convention are developed in the law, with for example consultation being regulated by Act No. 70, while Decree No. 1320, of 1998, regulates consultations with indigenous communities and those of African extraction.

3. The Committee recalls that, in its first report on the Convention, the Government indicated that "the Afro-American communities of Colombia are not understood as being included within the scope of the Convention since, although sections of this population, the coastal communities on the Pacific coast, and certain populations with similar characteristics in the interfluvial valleys have been considered as ethnic groups, according to the new Constitution of Colombia, these groups are not understood by the Colombian Government as being included in the category of indigenous or tribal peoples".

4. The Committee considers that, in the light of the information provided, the black communities of Curbaradó and Jiguamiandó appear to fulfil the requirements set out in Article 1, paragraph 1(a), of the Convention, in accordance with which it applies to: "tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations". Furthermore, paragraph 2 of this Article provides that "self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply". According to the information provided in the communication indicating that the representatives of the community councils of Curbaradó and Jiguamiandó participated in the preparation of the communication, it would appear that, in seeking the application of the Convention to their communities, they identify themselves as being tribal. Furthermore, the definition of "black community", as set out in Act No. 70, appears to coincide with the definition of tribal peoples in the Convention. The Committee requests the Government and the USO to confirm whether these communities identify themselves as tribal communities within the meaning of Article 1, paragraph 1(a), of the Convention. It also requests the Government to provide information on the percentage of persons of African extraction who fulfil the requirements of Article 1, paragraph 1(a), of the Convention. It further requests the Government, if it considers that these communities do not constitute tribal peoples within the meaning of the Convention, to indicate its reasons.

The Curbaradó and Jiguamiandó communities

5. The USO indicates that the members of these communities have been victims of systematic attacks against their life, freedom and integrity and of forced displacement. It states that, due to the crimes which, according to the communication, were committed for the most part by members of the public forces, or by military groups acting with their negligence, tolerance or acquiescence, and in certain cases by guerrilla groups, in August 2002, the 23 community councils of these peoples decided to declare themselves "Humanitarian Safety Zones".

6. Lands and natural resources. The USO further indicates that since 2001 the perpetration of human rights violations against these communities has been related to the advance of the extensive cultivation of oil-bearing palms and African palms and stock-raising projects, which have been undertaken despite the existence of collective title to these lands. The USO adds that "the dispossession of the lands of these communities has also been achieved through unlawful legal acts by palm-growing enterprises by means, among others, of the conclusion of contracts in violation of Act No. 70, fraudulent misrepresentation, deceit, the drawing up of legal acts which purportedly give the approval of these communities, the misrepresentation of the functions of duly recognized and registered representatives of the communities, agreements for the establishment of agricultural exploitations facilitated by public officials who are members of the armed forces, coercion and direct threats against the occupants, who are frequently compelled to sell their property through fear or the absence of any other beneficial option". In the communication of USO, examples are provided of death threats in March, April and June 2005 against members of these communities who had not yet left their lands with a view to forcing them to sell or abandon them. It concludes that the impact of intensive deforestation for the cultivation of African palms and stock-raising has given rise to devastating social and environmental harm.

7. Consultations. The USO refers to Decree No. 1745, issued under the third chapter of Act No. 70, which defines and determines the functions of the councils of communities of African extraction, and provides that community councils "are the highest internal administrative authority in the lands of black communities". It indicates that these authorities were not consulted, but that meetings were held with persons not authorized to represent the communities, and cites examples.

8. Action at the national level. The communication reports various activities at the national level. It indicates that in November 2004 the Colombian Rural Development Institute (INCODER) estimated that 4,993 ha. of the collective lands of the Curbaradó and Jiguamiandó had been taken over for the cultivation of palms and 810 ha. for stock-raising. Some 93 per cent of the land used for the cultivation of palms is within their collective lands, with the remaining 7 per cent consisting of private property adjudicated by the INCORA before the entry into force of Act No. 70. It refers, among others, to Instruction No. 008, of 21 April 2005, in which the Public Prosecutor required the Codechocó Corporation, the body entrusted with monitoring the Environmental Act, and INCODER to "submit within 15 days a report on the action taken up to the present to guarantee effectively the protection of the traditional rights of these communities and persons and a plan of action to be undertaken for this purpose". It also refers to resolution No. 30 of the Office of the Ombudsperson, of 2 June 2005, entitled "violation of human rights through the cultivation of the African palm in the collective lands of the Curbaradó and Jiguamiandó", inter alia, requiring enterprises engaged in the cultivation of palms to suspend with immediate effect the extension of the cultivation of African palms, request the return of the indigenous collective lands and resguardos that are affected by the cultivation of oil-bearing palms and those intended for stock-raising and the exploitation of wood and urging specific public bodies to refrain from granting environmental permits, authorizations and licences relating to the collective lands of the Curbaradó and Jiguamiandó black communities and indigenous resguardos without full compliance with the requirements relating to the environment and lands.

9. The Committee refers to the comments contained in paragraph 4 above, according to which the communities referred to appear to fulfil the requirements to be covered by the Convention. Subject to any comments that the Government may make, the Committee notes that if it is confirmed that these communities are covered by the Convention, it is necessary to give effect to Articles 6, 7 and 15 respecting consultations and natural resources and Articles 13 to 19 with regard to lands. In particular, the Committee refers to the right of these peoples to return to their traditional lands as soon as the grounds for relocation and transfer cease to exist (Article 16, paragraph 3, of the Convention) and the measures envisaged by the Government against any unauthorized intrusion in the lands of the peoples concerned or any unauthorized use by persons alien to them (Article 18 of the Convention). Noting that the communication refers on various occasions to threats, coercion and a climate of terror, as well as the lack of penalties against those responsible for violations of the right to life, integrity and freedom which gave rise to the forced displacement, the Committee also requests the Government to make all the necessary efforts to protect the life and integrity of the members of these communities. The Committee would be grateful if the Government, in addition to its comments on the communication, would provide information on the measures adopted to follow up the resolution of the Office of the Ombudsperson and Instruction No. 008 of the Public Prosecutor’s Office. The Committee will continue to examine the communication together with the Government’s comments.

B. The Government’s request for technical assistance

10. The Committee notes with interest that the Government has requested the Office’s technical assistance to facilitate consultations with the U’wa people in the context of the recommendations made by a tripartite committee in its report on a representation which was adopted by the Governing Body at its 212th Session (November 2001). The Committee notes that this request will be confirmed in the near future and that the Office has indicated its readiness to contribute to improving the implementation of the recommendations of the supervisory bodies. The Committee awaits further information on the commencement and implementation of this assistance.

[The Government is asked to reply in detail to the present comment in 2006.]

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1. The Committee notes the detailed information provided in the Government’s reports, and the numerous annexes attached. The Committee also refers to its observation.

2. Article 2 of the Convention. The Committee notes the information provided by the Government on the areas which have benefited from the economic resources granted to resguardos since 1994. It also notes that allocations have been governed since 2001 by Act No. 715. The Committee would be grateful if the Government would describe in its next report practical examples of some of the projects carried out with these resources and the manner in which indigenous communities were consulted and participated in their formulation, implementation and evaluation. It also requests the Government to indicate whether the resources allocated under the new Act respecting reservations are equal, lower or higher than those provided for in the previous legislation.

3. Article 7. With regard to the policy concerning the prior consultation of indigenous communities on matters relating to environmental management, the Committee notes the practical example mentioned concerning the consultation of the communities of the Wayuu ethnic group and trusts that the Government will continue to provide information in future reports on the activities of the General Directorate of Indian Affairs (DGAI).

4. The Committee notes the information provided by the Government on the current situation of the Cristianía indigenous community. The Committee would be grateful if the Government would continue to provide information on the regular maintenance of surface drainage (zanjas) which, according to the Government, should be agreed upon between the resguardo and the authority responsible for the maintenance of thoroughfares. It also requests the Government to send once again the photographic register of the situation of this indigenous resguardo, which was not received with its report.

5. The Committee notes the Government’s request for a clarification of its request for information concerning the ruling by the Constitutional Court in case No. T12559. In this respect, the Committee refers to the second paragraph of point 11 of its direct request in 1995, in which it noted that legislation to allow "popular action" (acción popular) to be used to protect environmental rights was under consideration and referred to the right of indigenous communities to environmental protection by actions to impose guardianship) (acciones de tutela) in case No. T-12559 (decision No. T-405, of 23 September 1993) concerning the installation of a joint North American/Colombian military base in the territory of the resguardo of Monochoa, home of the Huitoto and Muinane peoples, which allegedly violated Articles 6 and 7 of the Convention, and in which the Constitutional Court ordered the establishment of a permanent oversight committee including representatives from the affected communities to prepare an environmental management plan, including studies and analysis. The Committee trusts that the Government will provide detailed information in its next report on the establishment and activities of the above permanent oversight committee.

6. The Committee once again requests the Government to provide copies of administrative or judicial decisions relating to compensation granted to indigenous communities affected by mining activities.

7. Article 8. The Committee notes that the First Committee of the Chamber of Representatives decided to shelve a Bill submitted by an indigenous Senator in November 2000 to coordinate the ordinary legal system with the special indigenous legal system. Reiterating a previous request, the Committee asks the Government to provide information on developments relating to another Bill on the same subject prepared by an inter-institutional group.

8. Article 10. The Committee notes with interest section 33 of the new Penal Code and ruling No. C-370-02 of the Constitutional Court of 14 May 2002, which refer to the absence of imputability on grounds of the socio-cultural diversity deriving from the different cosmic vision of indigenous peoples. The Committee would be grateful if the Government would provide copies of court decisions based on these texts.

9. Article 11. With reference to its previous comments concerning the employment of children, the Government indicates in its report that the application of the Young Persons Code in Colombia is the joint responsibility of state institutions, for which they have administrative, technical, financial and human resources. It adds that an Inter-institutional Committee on Child Labour covers the specific situation of children who work. The Committee would be grateful if the Government would supplement the information provided by indicating whether the inspectors of the Special Labour Relations Department have provided information on this issue and supply statistics on the number of young indigenous persons under contract in employment, classified by sex and age group.

10. Article 14. The Committee notes that the Bill to issue basic territorial planning legislation is still being examined by the Congress. The Committee notes that the Bill was formulated with the participation of state institutions, as well as representatives of indigenous, black and gypsy communities. The Government adds that, with a view to publicizing the legislation and gathering opinions from the various sectors affected, workshops were held which helped to consolidate the final version of the Bill through contributions and initiatives from the various regions of the country. The Committee also notes that in May 2001 at the Permanent Dialogue Round Table the process of formulating the Bill was completed and that it took into account to a large extent the suggestions made by the representatives of the indigenous communities. The Committee requests the Government to provide a copy of the Act when it has been adopted.

11. The Committee notes the Government’s indication that an extension of 954,480 hectares has been granted to the territory of the resguardo of the Nukak-Maku indigenous communities, which was 632,160 hectares. The Committee would be grateful if the Government would keep it informed of any further special measures adopted for the benefit of this nomadic group.

12. The Government indicates in its report that disputed land claims, where they are between settlers and indigenous groups, are addressed through processes of dialogue, with the participation in many cases of the Ombudsman of the People and the Office of the Attorney-General through delegates for agrarian and ethnic affairs. The Committee notes that through these processes of dialogue, the collective lands of the indigenous and black communities in the Chocó Biogeográfico area have been legalized. It also notes the Government’s indication that section 85 of Agrarian Reform Act No. 160 of 1994 lays down the obligation of the Colombian Agrarian Reform Institute (INCORA) to safeguard the integrity of resguardos which have been occupied by persons foreign to them. Finally, the Committee notes that the Government has not received claims arising out of the juxtaposition of the hunting and fishing rights of different indigenous communities within the same territory.

13. Article 15. The Committee notes with interest the adoption of Act No. 685 in 2001 issuing the Mining Code. The Committee notes in particular that, in accordance with the Mining Code, any proposal by private entities to explore and exploit minerals within indigenous mining areas shall be resolved with the participation of the representatives of the respective indigenous communities; that the authorities of these same communities shall determine the manner in which the benefits are distributed; that once the concession has been adjudicated, the community may issue contracts for the whole or part of the work with third parties, but that the concession may in no case be transferred; that the indigenous authority may indicate within the mining area those places which may not be subject to mining exploration or exploitation by reason of their special cultural, social or economic significance for the community in accordance with their beliefs, practices and customs; and that where persons outside the indigenous community or group obtain rights for exploration and exploitation within indigenous mining areas they shall preferably include the community or group in their operations and processes and train their members to give effect to this preference. Finally, the Committee notes that, by virtue of section 129 of the Mining Code, municipalities which perceive benefits or shares from mining exploitations located on indigenous lands shall allocate the corresponding funds to works or services directly benefiting the aboriginal communities and groups settled on such lands. The Committee requests the Government to provide information on the criteria applied in practice for the granting of concessions for extraction and exploration in indigenous areas, and requests it to indicate the extent to which in practice indigenous authorities seek authorization for the exploration and exploitation of resources in their lands. Finally, the Committee reiterates its previous request for the Government to provide information on the manner in which indigenous peoples participate in the benefits in cases where the exploitation of resources is in the hands of third parties.

14. With reference to its previous observation, the Committee notes the copy provided by the Government of Decision No. 0564, of 26 June 1998, of the Ministry of the Environment refusing an application for an environmental licence for Mineros El Dorado S.A. for the exploitation and appropriation of certain gold-bearing deposits in a region occupied by various indigenous communities.

15. In its previous comments, the Committee requested the Government to provide information on any special measure adopted or envisaged to strengthen the economic basis of indigenous communities for the use, management and conservation of all the natural resources within their territory. The Committee notes the information provided by the Government indicating that in recent years it has made an investment of 124,321 million Colombian pesos and that it has adapted environmental standards to the traditional systems of production of indigenous communities. It also notes that programmes have been launched, in consultation with indigenous communities, for the conservation and recuperation of national parks, plains and small valleys, agriculture and stock-raising, support for the subsistence plans of communities, the definition of special management areas and consultation concerning development plans. The Committee would be grateful if the Government would continue to provide information on the impact of these programmes in terms of improving the living conditions in the various resguardos.

16. The Committee notes with interest the publication of the project entitled "Investigation for the development of a proposal to protect traditional knowledge within the context of access to genetic resources", financed by the Ministry of the Environment, which was accompanied by a report. It also notes with interest the various publications provided by the Government on the policies developed and activities undertaken for social participation in the conservation of the national parks in Colombia. The Committee once again requests the Government to provide information on the progress achieved in the adoption of the draft legislation and regulations on biodiversity, which include mechanisms to secure indigenous communities the benefits of the use of their traditional knowledge in this field.

17. Article 16. The Government indicates that in the event of the forced displacement of indigenous communities by third parties, an inter-institutional approach is adopted to achieve their return. The Committee requests the Government to provide information in its next report on recent cases in which it has been necessary to make use of these procedures to facilitate the return of such communities to their traditional lands.

18. Article 19. With reference to its previous request, the Committee notes the information provided by the Government in its report that representatives of indigenous communities participate in the credit committees of the World Food Programme (WFP) at both the national and regional levels. It also notes that the projects supported by the WFP are related to the financing of enterprises in the fields of mining, agriculture, stock-raising, fisheries and artisanal agriculture in relation to all their commercial aspects. With regard to the information requested on the application in practice of Act No. 160 of 1994, establishing the national system of agrarian reform, the Committee notes the Government’s indication that through INCORA legal recognition has been granted to 30 million hectares for indigenous communities in 575 resguardos.

19. Article 20. With reference to its previous comment on the measures adopted to give effect to this Article of the Convention, the Committee notes the Government’s indication that, under the terms of Decree No. 1128 of 1999, restructuring the Ministry of Labour and Social Security, the labour inspectorate for all categories of workers is the Special Labour Inspection, Supervision and Control Unit. The Committee welcomes the information provided and once again requests the Government to supply information on the inspection activities carried out in indigenous areas, including the number of inspections, the violations reported and the measures taken, particularly to ensure the application in practice of the principle of equal remuneration for work of equal value.

20. Articles 21 and 22. The Committee notes the information provided by the Government on the training provided to members of indigenous communities, with an indication of its duration, the numbers of the population receiving training (disaggregated by gender) and the geographical areas covered.

21. Article 24. The Committee notes with interest that regulations have been issued under Act No. 691 of 2001 on the participation of ethnic groups in the general social security and health system and that ten health promotion enterprises have been established by Decree No. 330 of 2001. The Committee notes the Government’s indication that indigenous communities are among the groups benefiting from subsidized social security services based on the census provided by the president of the local council to the mayor of the municipality. It notes that between 1 August 2000 and 31 July 2002 a total of 471,241 indigenous persons were registered with the social security system at a cost of 73,281 million Colombian pesos at 2001 values. The Committee would be grateful if the Government would provide information on the percentage of the indigenous population covered by the social security system. It also requests the Government to indicate the manner in which the conservation and development of traditional medicine and alternative forms of care are promoted in practice.

22. Articles 26 to 29. The Committee notes the various activities carried out between 1999 and 2002 in the context of the National Ethnic Education Programme for the training of 2,000 ethnic educational teachers for indigenous boys, girls and young persons. The Committee would be grateful if the Government would continue to provide information on the application of these Articles of the Convention in practice.

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1. The Committee notes the information provided in the Government’s reports received in October 2002 and September 2003, respectively, and their annexes.

2. The Committee notes with interest the adoption of Act No. 685 of 2001 issuing the Mining Code, recognizing extensive rights to indigenous communities to control the exploration and exploitation of the minerals in their lands. This issue is addressed in greater detail in a request addressed directly to the Government.

3. The Committee notes the information provided by the Government in its reports indicating that the Council of State, in a decision of 20 May 1999, confirmed that Decree No. 1320 of 1998 was in force before the representation referred to below had been examined. The Government indicated that the Decree sets forth the concept contained in article 330 of the Constitution concerning the participation of the representatives of indigenous peoples without any restrictions and that its regulation by means of a Decree was consonant with the duty and function entrusted to the Government by the Constitution. The Committee reminds the Government that the tripartite committee which examined the representation under article 24 of the ILO Constitution in 2001 indicated that the process of prior consultation, as provided for in Decree No. 1320, is not consistent with Articles 2, 6, 7 and 15 of the Convention, and that effective consultation requires that sufficient time be given to allow the country’s indigenous peoples to engage in their own decision-making processes and to participate effectively in decisions taken in a manner consistent with their cultural and social traditions, since if this is not done it will be impossible to meet the fundamental requirements of prior consultation and participation (document GB.282/14/3, paragraph 79). The Committee trusts that, as consultation and participation are central to this instrument, the Government will consider amending its legislation to bring it into conformity with Articles 2, 6, 7 and 15 of the Convention. As the above Decree is still being re-examined in the light of the Governing Body’s recommendations concerning the representation, the Committee trusts that the Government will take fully into account the explanations provided in the report of the Governing Body on the requirements of these Articles of the Convention. In this respect, the Committee notes the extensive consultations with indigenous communities referred to by the Government in relation to various projects.

4. With reference to its comments on the oil exploitation activities in the Resguardo Unido U’wa, the Committee notes the information provided by the Government indicating that in the event of the cession of rights, exploration for hydrocarbons will be entrusted to a Colombian state enterprise (Ecopetrol) with the objective of balancing public finances and achieving the well-being of all Colombian citizens, and that this situation is being explained to the communities concerned. The Government also indicated that a social action plan has been established covering 51 communities in the area of influence of the project for the promotion of social investment, the employment of unskilled and semi-skilled workers, community participation and support for community organization and training in entrepreneurship for the provision of services to the oil project. The Government added that in March 2003 the Ministry of the Environment undertook a first follow-up visit and that on 17 March 2003 a meeting was held with ten representatives of the U’wa people through the Association of Traditional U’wa Authorities (ASOU’WA) to inform them of all the technical, environmental and social aspects of an exploration project to be undertaken in the resguardo, and a proposal was made for the joint development of a working methodology with Ecopetrol with a view to the active, broad and full participation of the U’wa people in this process. The Committee also notes the Government’s indication concerning the establishment of an inter-institutional team with the participation of the Ministries of the Interior and Justice, the Environment, Housing and Territorial Development, Mines and Energy, Agriculture, External Affairs, as well as the National Parks Unit and the Colombian Agrarian Reform Institute. This team is to provide leadership for all the action required so that the process of prospecting for hydrocarbons in the U’wa territory is in accordance with international agreements, the constitutional provisions and laws that are in force and is based on the optimum existing technological developments. The objective is to ensure that the oil project, rather than being a threat, constitutes an opportunity for resuscitating, strengthening and maintaining the millennial culture of the U’wa, while guaranteeing the environmental and ecological balance of the territory and at the same time giving rise to peace and sustainable development, thereby contributing to generating prosperity and ensuring the survival of the U’wa people. The Committee would be grateful if the Government would keep it informed of any developments in its next report and trusts that it will adopt all the necessary measures to guarantee that the U’wa people benefit from all the rights afforded by the Convention.

5. The Committee notes the information provided by the Government in its reports concerning negotiations with the representatives of the Embera-Katío people concerning the construction of the Urrá hydroelectric dam. The Committee notes with interest the payment of the amount granted as compensation for the exploitation of water resources, which was negotiated with the Alliance of Smaller Town Councils of the Esmeralda River and the Sinú River Areas, which will be used to purchase lands to extend the resguardo. It also notes with interest that, as a result of a decision by the Ministry of the Environment, the enterprise Urrá S.A. purchased 9,994 hectares for the Embera Katío del Alto Sinú people. The Government indicates that it has granted a subsistence and transport subsidy to the members of the five communities constituting this Alliance and that a court ruling is still awaited on the granting of other entitlements of the Major Town Councils of the Río Verde and Río Sinú (Iwagadó). The Government indicates that meetings have been held by two follow-up committees to analyse the status of the entitlements acquired, but that there are difficulties in holding further meetings and in the implementation of new projects in view of a crisis within the indigenous organizations. The Committee trusts that the Government will continue to provide information on the progress achieved in this respect in its next report.

6. The Committee notes that the Government has not provided information on the measures adopted or envisaged to investigate the acts referred to in the report of the tripartite committee which formulated the recommendations adopted by the Governing Body at its 282nd Session (November 2001) concerning the use of force against the U’wa people. The Committee requests the Government to provide information in its next report.

7. The Committee once again regrets the lack of information in the reports on the measures adopted or envisaged to prevent acts of intimidation and violence against members of the Embera-Katío people and on the progress made with the investigations of the alleged murders, kidnappings and threats perpetrated against the spokespersons of the community, including Alonso Domicó Jarupia, Alirio Pedro Domicó, Lucindo Domicó Cabrera and Kimy Domicó Pernía.

8. Reiterating its previous comments, the Committee requests the Government to indicate the progress made in the investigations of the allegations of human rights violations, including the killing of indigenous persons in the communities of the Sierra Nevada de Santa Marta and to specify the institutions which are carrying them out, such as the Public Prosecutor’s Office, the Office of the Attorney-General or the Office of the Ombudsman.

9. The Committee is addressing a request directly to the Government on other matters.

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1. The Committee recalls that at its 282nd Session (November 2001) the Governing Body adopted a report (document GB.282/14/3, available through the ILOLEX database on the ILO’s web page at http://www.ilo.org), concerning a representation alleging the non-observance by Colombia of the present Convention, made under article 24 of the Constitution. The representation alleged that the Government had not complied with the Convention’s requirement of consultation with the indigenous peoples concerned, in particular the Emberra Katío people, in the construction and operation of the Urrá hydroelectric dam. It was alleged that irreparable harm was caused to these indigenous peoples by the construction of this project; and that Decree No. 1320 which was adopted to regulate consultations, was itself adopted without adequate consultations. Other allegations were also made, including that a process of petroleum exploration was carried out that affected the U’wa indigenous people, again without adequate prior consultation. The Committee concluded, on the basis of the information submitted to it, that "the process of prior consultation, as provided for in Decree No. 1320, is not consistent with Articles 2, 6, 7 and 15 of the Convention". It recommended that the Government be requested to amend the legislation concerned, and that it improve the consultation procedures to come into conformity with the Convention’s requirements. It also asked the Government to provide information to the present Committee on a wide range of issues related to consultations with indigenous peoples when planning and carrying out development projects that affect them, land rights and mineral exploitation in particular.

2. The Committee notes the voluminous report and appendices received from the Government shortly before its session, which the Committee unfortunately was unable to examine for the present session. It notes that this report provides information both in reply to the Governing Body report on the representation and to the present Committee’s previous comments on the application of the Convention more generally, though the Committee has not been able to examine whether the Government’s report replies fully to the questions put to it. It requests the Government to send further information, if necessary, on any additional developments under the Convention in good time for it to be examined in detail at the Committee’s next session.

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1.  Article 1 of the Convention.  The Committee notes that, according to the Government, the Convention applies to 82 peoples which are present in the country. The Government states that the indigenous population in the national territory numbers 621,186 inhabitants.

2.  Article 2.  In its report, the Government indicates that the development, implementation and monitoring of programmes for indigenous peoples is the responsibility of the various ministries and the bodies attached to them. The Committee notes the information provided by the Government concerning the various participation and dialogue mechanisms established between the Government and indigenous peoples, including the National Commission on Indigenous Lands, the Permanent Dialogue Council with Indigenous Peoples and the National Human Rights Commission for Indigenous Peoples. The Committee requests the Government to indicate the proportion of representatives of indigenous peoples on these bodies.

3.  Article 3.  The Government indicates that Decree No. 1396 of 1996 established the National Human Rights Commission for Indigenous Peoples. The above Commission handles and evaluates complaints submitted concerning alleged violations of human rights affecting indigenous communities or their members. However, the Committee notes that the report also states that the above Commission does not currently have the authority to investigate cases. The Committee therefore requests the Government to indicate the competence and functions of the above Commission and the authority conferred upon it.

4.  Article 5.  With reference to its previous comments on indigenous communities living in resguardos in remote areas and facing difficulties in gaining access to goods and services, the Committee notes that, according to the Government, the indigenous communities which have legally established their resguardos have received 1,433,769 million pesos since 1995 in accordance with Act No. 60 of 1993 and Regulatory Decree No. 1386 of 1994. Noting that these resources have to be invested in social sectors, such as education, health, drinking water and basic sanitation, the Committee notes that the funds received by the indigenous communities have been used on projects submitted by the indigenous communities to the relevant municipal authorities. It requests the Government to provide practical examples of the projects undertaken with the above funding and on the practical impact of these measures on the living conditions of these communities.

5.  Article 6.  With regard to the policy concerning prior consultation with indigenous communities, the Committee notes that, according to the Government, during the period under review, the General Directorate of Indigenous Affairs (DGAI) participated in 50 consultation processes and followed up the completed consultations. During this period, 163 certifications were issued concerning the existence of indigenous communities in areas affected by public works and other projects. The Government emphasizes the importance of the preparation of the environmental management plan prepared jointly with the indigenous communities concerned and the enterprise executing the project. The Committee requests the Government to indicate the outcome of the consultations in which the DGAI has participated and to provide practical examples of the participation of indigenous communities in environmental management plans.

6.  Article 7.  The Committee notes that, according to the report, the National Recovery Plan (PNR) is no longer in existence. Recalling that the National Council on Indigenous Policy (CONAPI) is the focal point for defining development priorities and devising a programme of action for indigenous peoples, it once again requests the Government to provide information on the extent to which in practice the indigenous communities participate in the formulation, implementation and evaluation of plans and programmes which may affect them directly.

7.  The Committee once again recalls its request for information on the application of the decisions of the Constitutional Court on the compensation granted to indigenous communities affected by the damage caused by mining activities and the suspension of work on the extension of a highway. The Committee notes the information provided by the Government on the construction of a stretch of the Andes-Jardín highway, a project which affected the Cristianía indigenous community and which lacked the required environmental impact study. According to the Government, the environmental impact study was completed and the work on the road carried out within the parameters of the study in compliance with ruling T-428 of the Constitutional Court. The Committee once again requests the Government to provide information on the rulings of the Constitutional Court concerning compensation to indigenous communities affected by the damage caused by the mining activities.

8.  The Committee noted previously that the Constitutional Court, in its ruling on case No. T-12559, called for the establishment of a permanent oversight committee which included the representatives of the affected communities with a view to the preparation of an environmental management plan based on studies and analysis. In the absence of any reply by the Government on this point, the Committee once again requests the Government to provide detailed information in its next report on the establishment and activities of the permanent oversight committee.

9.  Article 8.  The Committee notes that draft legislation has been prepared with a view to coordinating the ordinary legal system with the special indigenous legal system, although this draft legislation has not yet been submitted for examination by the Congress of the Republic. The Committee would be grateful if the Government would keep it informed of any progress in this respect.

10.  The Committee recalls its request for information on the mechanisms for resolving any conflicts between customary law and national law and it notes, from the information provided by the Government, that State bodies intervene as facilitators and mediators in disputes which arise. The Committee requests the Government to provide practical information on cases which have occurred involving the intervention of the State and on their outcome.

11.  Article 9.  The Committee notes the Government’s statement that article 246 of the Constitution on the special indigenous legal system has been applied when considered appropriate. The Committee requests the Government to provide examples of cases in which this article has been applied in practice and the outcomes.

12.  Article 10.  The Government states that the new Penal Code and the Code of Penal Procedures have been adopted and that they contain special conditions respecting the treatment, penalties, detention and rehabilitation of indigenous persons. Noting that both Codes are being reviewed by the Constitutional Court, the Committee requests the Government to keep it informed of any developments in this respect.

13.  Article 11.  With reference to its previous comments concerning the employment of children, the Committee once again recalls its request for information on enforcement mechanisms to ensure compliance with the legislative measures in force, with particular reference to the Young Persons Code (Decree No. 2737 of 1989) and requests it to indicate whether inspectors of the Special Labour Relations Department have reported this problem. Please also include statistics on the number of young indigenous persons engaged in employment, disaggregated by sex and age.

14.  Article 14.  The Committee notes that the Organic Territorial Planning Act, which will regulate the demarcation of Indigenous Territorial Units (ETIs), has not yet been adopted. The Committee therefore repeats its request for the Government to provide a copy of the Act when it has been adopted. In this context, the Committee also repeats its request for full information on the commission appointed to initiate a process of consultation about the basic elements of the Organic Territorial Planning Act and to prepare draft legislation on the concept of indigenous territories.

15.  The Committee notes that the Government has extended the resguardo territory of the Nukak-Maku, the only indigenous group which may be classified as nomadic. The Committee requests the Government to indicate the size of the extension of the territory, and any other special measure taken for the benefit of this nomadic group.

16.  In the absence of a reply from the Government on this matter, the Committee once again repeats its request to the Government to provide information on the measures which have been adopted or are envisaged to resolve conflicting land claims, either between settlers and indigenous groups, or arising out of the juxtaposition of hunting and fishing rights of different indigenous communities within the same territory, as part of the ongoing process of the demarcation of resguardos.

17.  Article 15.  In its previous comments, the Committee noted that the majority of indigenous communities pursue traditional activities, such as hunting, fishing and gathering, to support themselves. In this respect, the Committee repeats its request to the Government to provide information on any special measures which have been taken or are envisaged to strengthen the economic basis of indigenous communities in the use, management and conservation of all the natural resources within their territory.

18.  The Committee once again requests the Government to provide detailed information on the criteria applied in practice for granting concessions for extractive and explorative activities in indigenous areas, including the extent to which the requirement to obtain an authorization is enforced by the relevant indigenous authorities. Furthermore, it once again requests the Government to provide information on the manner in which indigenous peoples participate in any benefits or compensation for damages and prejudice incurred as a result of these activities.

19.  In its previous comments, the Committee noted the draft legislation and regulations on biodiversity, which include mechanisms to guarantee indigenous communities the benefits of using their traditional knowledge in this field. In this respect, the Committee notes the project entitled "Investigation to prepare a proposal for the protection of traditional knowledge in the context of access to genetic resources", which is being reviewed by the Ministry of the Environment. The Committee would be grateful if the Government would provide information on biodiversity as it affects the indigenous communities in the country.

20.  The Committee notes the information contained in the Government’s report concerning the seismic exploration conducted by a private enterprise in the resguardo of the U’wa community. It notes the recommendations contained in the document prepared by the joint team of the Unit for the Promotion of Democracy and the International Affairs Center of the University of Harvard (project OAS/Harvard), entitled "Observations and recommendations on the case of the Samoré Block". According to the report, the Government has endorsed the second phase of the project, although the indigenous community concerned has not expressed an opinion. The Committee requests the Government to indicate any measure which has been taken or is envisaged in this respect.

21.  The Committee previously requested information on the study to be carried out by the Colombian Institute for Agrarian Reform (INCORA) and the Colombian Anthropological Institute on the establishment of a special arrangement to recognize the permanence of the indigenous communities in the national natural parks and their economic right to the use of renewable natural resources, without detriment to the existing environmental conservation policy. The Government states that, by means of Decree No. 1124 of 1999, the Special Administrative Unit of the National Natural Parks System of the Ministry of the Environment (UAESPNN) was entrusted with the administration and management of the areas within the national natural parks system. The Committee notes with interest the policy developed by the UAESPNN, which includes developing participative methods based on dialogue, training and intercultural education for different knowledge systems, and the construction of processes of convergence between the living plans of indigenous peoples and the plans for the management of protected areas, in consultation with indigenous organizations and with the participation of the traditional authorities of indigenous peoples.

22.  Article 16.  The Committee recalls its previous comments concerning articles 63 and 329 of the Constitution pursuant to which, if an indigenous community has to be resettled from a resguardo, once the reason for resettlement ceases to exist, the community may return to its traditional lands, since it does not lose its collective rights to these lands, given that these rights are inalienable. The Committee also recalls that certain indigenous communities have been resettled as a result of the occupation of their lands by third parties and repeats its request to the Government to provide full information on any measures which have been taken or are envisaged to facilitate the return of these communities to their traditional lands.

23.  Article 18.  In the absence of a reply, the Committee repeats its request to the Government to provide information in its next report on any measures which have been taken or are envisaged to protect the land rights of indigenous peoples and to prevent others from securing the ownership, possession or use thereof.

24.  Article 19.  The Committee recalls that the National Recovery Plan (PNR) no longer exists and that its functions have been taken over by the Social Solidarity Network. It also notes that, according to the report, the Indigenous Programme continues and that indigenous persons participate in the National Credit Committee and in regional microcredit committees to agree on infrastructure projects within the framework of a cooperation agreement with the World Food Programme. The Committee requests the Government to provide practical information on the participation of indigenous persons in credit committees and the infrastructure projects carried out. The Committee also repeats its request for information from the Government on any measure intended to facilitate the access of indigenous communities to credit and marketing services, and to other technical services and assistance. Once again, it requests the Government to provide information in its next report on the application in practice of Act No. 160 of 1994, establishing the National System of Agrarian Reform and the Development of Rural Workers, which provides certain benefits for rural workers, including indigenous workers.

25.  Article 20.  With reference to its previous comments, the Committee notes that the Special Labour Relations Department was abolished during the restructuring of the Ministry of Labour and Social Security. It therefore requests the Government to indicate the authority or institution which is responsible for inspecting the recruitment and conditions of employment of indigenous workers. The Committee requests detailed information on the inspection activities undertaken in indigenous areas, including the number of inspections, the violations reported and the measures taken. The Committee once again requests information on the manner in which the application of the principle of equal remuneration for work of equal value is guaranteed in relation to indigenous workers, and how the access of indigenous communities is guaranteed to medical and social assistance, occupational safety and health, health care, social security and housing.

26.  Articles 21 and 22.  With reference to its previous comments on the participation of indigenous persons in programmes run by national vocational training and further training institutions, the Committee notes that the National Apprenticeship Service (SENA) has developed a programme for special populations, which covers indigenous peoples. In this context, it also notes that the SENA has concluded contracts with Colombia Handicrafts (Artesanías de Colombia), a government body attached to the Ministry of Economic Development which is responsible for the development and marketing of Colombian handicrafts. The Committee requests the Government to provide information on special training activities for indigenous communities, including the number of communities in which such activities have been undertaken, and the various types of special training and education provided, and particularly training services which conserve and develop the knowledge and handicrafts of indigenous persons.

27.  Article 24.  The Committee recalls that in its previous comments it noted that indigenous peoples had started to set up health fund management companies, within the framework of the Social Security Act (Act No. 100 of 23 December 1993). The Committee once again requests the Government to provide information on the number of indigenous persons who are covered by such arrangements and on any other measures which have been taken or are envisaged to provide other social security benefits to indigenous communities working in the informal sector.

28.  Article 25.  The Committee notes that, according to the report, measures are being taken to approach the issue of traditional indigenous medicine and steps are being discussed for its regulation. The Committee once again requests the Government to provide detailed information on the measures which have been taken or are envisaged to meet the health needs of indigenous communities, including the activities of the Advisory Council for the Conservation and Development of Traditional Medicine and Alternative Therapies.

29.  Articles 26 to 29.  The Committee once again requests the Government to provide full information on ethno-education, including the results achieved, with special reference to children and young persons aged between 7 and 17 years.

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1.  The Committee notes the information contained in the Government’s report. With reference to the situation of Emberá Katío community in the Alto Sinú region faced with the construction of a hydroelectric dam (the Urrá project), the Committee notes that several questions regarding this situation, particularly in respect of the alleged failure to consult with the populations concerned and the irremediable damage caused to their environment, are being examined in the context of two representations made under article 24 of the Constitution, which were deemed receivable by the Governing Body. Noting that these representations are expected to be examined by the Governing Body in 2001, in accordance with established practice, the Committee will not examine these matters at the present session. It therefore requests the Government to send additional information on matters relevant to the representations when sending its report in 2002.

2.  As regards the question of the environmental impact studies which should involve the indigenous communities concerned before any environmental licence is granted, in accordance with section 7 of Decree No. 1337, the Committee notes the indications in the report on resolution No. 0564 of 26 June 1998 by the Ministry for the Environment. According to the Government, this resolution resulted in the refusal of the request for an environmental licence made by the El Dorado, S.A. Mining Company regarding the appropriation and exploitation of certain gold deposits, activities to be undertaken in a region occupied by various indigenous communities. The Government states that the Ministry for the Environment took account of the participation of the indigenous communities concerned when making its decision. The Committee requests the Government to supply a copy of the text of the above resolution which, although mentioned by the Government, has not been received by the Office.

3.  Article 3.  In its earlier comments, the Committee had noted reports that had been received of human rights violations, including massacres in indigenous communities in Sierra Nevada de Santa Marta, and that the Permanent Commission on Indigenous Rights was conducting investigations into these grave allegations, in cooperation with the Office of the People’s Advocate. The Government indicates that the Permanent Commission on Indigenous Rights does not in fact have jurisdiction to investigate cases of alleged violation of human rights in indigenous populations or among members of indigenous communities. Noting, however, that the Government’s report does not reply to its earlier request, the Committee again asks the Government to indicate the status of these investigations and to list the institutions conducting the investigations, for example the National Office of the Public Prosecutor or the Office of the Attorney-General and the Office of the People’s Advocate.

The Committee is addressing a request regarding other matters concerning the application of the Convention directly to the Government.

[The Government is asked to report in detail in 2002.]

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1. The Committee takes note of the Government's report and attached documentation. The Committee in its previous observation asked the Government to provide information on the following points.

2. Article 1 of the Convention. The Committee notes the information provided by the Government on the size of the country's indigenous population, which is currently estimated at 603,000.

3. Article 2. The Committee takes note of the Government's explanation contained in the annexes to the report on the mechanisms for coordination among the various institutions responsible for indigenous affairs. The Committee asks the Government to indicate whether, in developing these mechanisms, it has provided for participation by representatives of the peoples concerned.

4. Article 5. In its earlier comment regarding some indigenous communities living in resguardos in remote areas and facing severe hardship in relation to access to basic necessities, the Committee observed that, according to the Government, resources had been transferred to these communities to be used as they saw fit. The Committee again expresses the hope that the Government will provide more information on the practical effect of these actions. See also paragraph 6 below, which is also relevant to this question.

5. Article 6. In its previous comments, the Committee requested information on participation by indigenous peoples in the development of a new indigenous policy and on new modalities for participation by indigenous people in the National Indigenous Policy Council (CONAPI) and in other state entities active in indigenous affairs. In its reply, the Government submitted to the Committee two books entitled "Indigenous Peoples in the Country and in America" and "Toward the Recognition of Indigenous Rights", both of which were published by the Directorate General for Indigenous Affairs (DGAI) in 1998 and contain detailed discussions on the formulation of an indigenous policy involving consultations with and participation by indigenous communities in accordance with the provisions of the Convention. The Committee welcomes this detailed examination of policy on participation. The Committee asks the Government to indicate in its next report how the policy of participation and consultation announced in these books is implemented and to provide an assessment of its application.

6. Article 7. The Committee noted previously from the Government's report that the National Recovery Plan (PNR), together with other state entities, had been actively involved in providing development assistance for projects according to the specific characteristics of each indigenous group. The Committee also noted that CONAPI was the focal point for defining development priorities and devising a programme of action for indigenous peoples. The Committee again requests information on the mechanisms for collaboration between PNR and CONAPI and the extent of participation of indigenous communities in the formulation, implementation and evaluation of plans and programmes directly affecting them.

7. The Committee again recalls its request for information on the proposal for a decree to establish feasibility studies and prior consultations to be undertaken prior to the implementation of development projects, public works and exploitation of resources; and on the Decision of the Court of First Instance that a petroleum company was in violation of Articles 7(3) and 15 of the Convention for not carrying out prior environmental impact assessment studies (Proceeding No. 6922). It repeats its request to the Government to provide information in its next report on any further developments in this regard.

8. The Committee previously noted with interest Decree No. 1386 of 1994, according to which the indigenous authorities in the resguardos have the right to decide the manner and form of the share of national revenue which corresponds to their resguardos, and that this is done through projects formulated by the indigenous communities themselves which are presented to the local municipal authorities for consideration and approval. The Committee again requests the Government to provide information in its next report on the practical application of this Decree, including the number of communities which have availed themselves of this opportunity and the modalities for cooperation between the municipal authorities, CONAPI and other state entities providing assistance to indigenous communities.

9. The Committee recalls its previous comments regarding the "acción de tutela" (guardianship proceedings) in which it requested information on the implementation of the Constitutional Court's decisions regarding: (i) compensation to communities affected by environmental damage caused by coal mining (Case No. T-859, Decision F-428, 2 July 1992); and (ii) to halt the construction of a highway (Case No. T-2679, Decision T-528 of 18 September 1992). The Committee again requests the Government to provide this information in its next report.

10. The Committee noted that the Constitutional Court in its ruling on Case No. T-12559 calling for the creation of a permanent oversight committee, including representatives from the affected communities, to prepare an environmental management plan, including studies and analysis. The Committee again requests the Government to provide further information on the establishment and activities of the permanent oversight committee with its next report.

11. Article 8. The Committee noted that the legislative measures to regulate the coordination among the indigenous and the national jurisdictions had not yet been drafted, mainly owing to a lack of knowledge about the different indigenous legal systems, of which there are estimated to be about 84. In addition, the Committee noted that the Council for Constitutional Development (Consejería para el Desarrollo de la Constitución) was preparing a study on the systematization of the juridical systems of the Paez, Wayuú, Tule and Kogi communities which was to be completed in July 1994 and was to serve as the basis for a comprehensive compilation of customary law and practices. The Committee, noting the fact that measures are being taken to promote and apply the indigenous jurisdictions and to coordinate them with the national jurisdiction, requests the Government to keep it informed of further developments in this process and on any cases that have arisen in practice.

12. The Committee noted that the Permanent Committee on Indigenous Rights was mediating inter-ethnic and inter-community conflicts arising from land rights, exploitation of natural resources, and legal and juridical representations. It once again requests the Government to provide further information on these cases, the modalities for cooperation between the Permanent Committee on Indigenous Rights and the relevant traditional indigenous authorities, including the mechanisms for resolving any conflicts between customary law and national law.

13. Article 9. The Committee noted the Government's statement that this Article is of immediate application. It again requests more information on its practical implementation.

14. Article 10. The Committee requests the Government to provide more information on the practical application of section 22 of the Penal Code whereby an indigenous person who commits an act not considered a serious crime in his or her community may be rehabilitated in his or her natural surroundings.

15. Article 11. The Committee noted the information in the previous report regarding the employment of children. It again requests the Government to provide information on enforcement mechanisms to ensure compliance with the legislative measures in force, with particular reference to the Minors' Code (Decree No. 2737 of 1989) and to indicate whether the labour inspectors in the Special Labour Relations Department have encountered this problem. Please also include statistics on the number of indigenous children engaged in employment when this information is available.

16. Article 14. The Committee requested the Government to keep it informed of further developments with regard to the Organic Territorial Planning Act, which will regulate the demarcation of the Indigenous Territorial Units (ETIs), and to provide a copy of the Act when it is adopted. In this context, the Committee also noted that in 1992, CONAPI appointed a joint commission with representatives of indigenous organizations and indigenous senators, the Department of Indigenous Affairs (DAI) and other state entities, to initiate a process of consultations about the basic elements of the Organic Territorial Planning Act and to elaborate a draft law on the concept of indigenous territories. Please provide further information in this regard.

17. The Committee noted from the report that the Nukak-Maku is the only indigenous group which may be identified as nomadic, and that this is directly related to their hunting and gathering activities. Within the ongoing process of demarcation, creation and restructuring of indigenous lands, the Committee again requests the Government to provide information on the measures taken or envisaged to recognize and accommodate the rights of this nomadic group to use lands they do not exclusively occupy but to which they have traditionally had access.

18. The Committee again requests the Government to provide information on the measures taken or contemplated to resolve conflicting land claims, whether between settlers and indigenous groups or arising from the juxtaposition of hunting and fishing rights of different indigenous communities within the same territory, as part of the ongoing process of demarcation of resguardos.

19. Article 15. Noting that the majority of indigenous communities pursue traditional activities, such as hunting, fishing and gathering, to support themselves, the Committee reiterates its request to the Government for further information on the special measures to strengthen the economic bases of the indigenous communities in the use, management and conservation of all the natural resources within their territories. The Committee considers that, although no special measures appear to have been taken to safeguard the rights of indigenous peoples to natural resources as provided in Article 15, these rights do appear to enjoy at least basic protection to the degree that indigenous peoples have exclusive rights over their territories, subject to the considerations set forth in the following paragraph.

20. The Committee notes with interest the "acción de tutela" decision issued by the Constitutional Court (13 September 1993) regarding the illegal deforestation in the resguardo of the Emberá-Catío indigenous community. It also notes that a request to the DAI for a permit or concession to extract forest resources from an indigenous area must be accompanied by an authorization from the relevant indigenous authority. The Committee did not note any corresponding requirement that indigenous authorization be obtained prior to exploration or exploitation of other resources in indigenous territories (Article 15(2)), and again requests the Government to indicate any initiative it may have taken in this respect.

21. Noting that indigenous communities have been adversely affected by the deforestation, mining and other extractive projects undertaken by settlers and mining companies in indigenous lands, the Committee again requests the Government to provide further information on the criteria for granting concessions for extractive and explorative activities in indigenous areas, including the extent to which the requirement of authorization from the relevant indigenous authority is enforced. Please also provide information on the participation of the indigenous peoples in any benefits or payment for damages incurred as a result of such activities.

22. The Committee noted with interest the draft legislation and regulation on biodiversity which includes mechanisms to guarantee indigenous communities the benefits of using their traditional knowledge in this field, and requests the Government to keep it informed in this respect.

23. With regard to the seismic exploration in the resguardo of the Uwa community by a private company, which the community in question opposed, owing to its detrimental effects on their health and well-being, the Committee again requests the Government to indicate whether the seismic exploration project has been discontinued.

24. The Committee again requests the Government to keep it informed of the outcome of the study due to be carried out by the Colombian Institute for Agrarian Reform (INCORA) and the Colombian Anthropological Institute, with a view to establishing a special regime which will recognize the permanence of the indigenous communities in the national parks and their economic right to the use of renewable natural resources, without detriment to the existing environmental conservation policy.

25. Article 16. The Committee noted that, by virtue of articles 63 and 329 of the Constitution, if an indigenous community had to be resettled from a resguardo, once the reason for resettlement ceased to exist, the community could return to its traditional lands. It could not lose its collective right to those lands, since this right is inalienable. The Committee also noted the information given regarding the resettlement of the Wayuú community in the Caracolí region affected by earthquakes and avalanches. However, the Committee noted that some indigenous communities were displaced by settlers taking over their lands. Please provide information on any measures taken or envisaged to facilitate the return of these communities to their traditional lands.

26. Article 18. Noting that there are indications that the indigenous communities in the Andean region are losing their lands to settlers at a rapid rate, the Committee again requests the Government to provide information in its next report on any measures taken or contemplated to protect the land rights of the indigenous peoples and to prevent others from securing the ownership, possession or use thereof.

27. Article 19. The Committee noted that, by virtue of Decree No. 2147 of 1993, agricultural credit facilities for indigenous communities had been discontinued. The Committee also noted the information regarding the credit and production facilities available to the indigenous communities within a joint project with PNR and the World Food Programme. The Committee again requests the Government to keep it informed in this regard, and in particular to provide information on any other measures aimed at facilitating the access of indigenous communities to credit and marketing services, and to other technical services and assistance. The Committee also once again requests the Government to provide information in its next report on the practical application of Act No. 160 of 1994, which creates the National System of Agrarian Reform and Development of Rural Workers and provides for certain benefits for rural workers, including indigenous workers.

28. Article 20. The Committee noted the information that the recruitment and conditions of employment of different workers are monitored by the labour inspectors. As regards indigenous workers, the Committee again requests further information on any supervisory activities of the Department of Special Labour Relations in indigenous areas. The Committee also requests information on equal remuneration for work of equal value, medical and social assistance, occupational safety, health and social security benefits, and housing for indigenous workers, since neither the previous report nor the present report addresses these issues.

29. Articles 21 and 22. The Committee notes that, apart from indigenous participation in vocational training and qualification programmes run by national entities, there are also other qualification programmes run by the Ministry of Agriculture and others, including "Intercultural Training in Community Projects Management" (Capacitación intercultural en gestión de proyectos comunitarios), which is run in cooperation with the World Bank and provides assistance to ten indigenous peoples in four regions of the country. The Committee would like information on any measures taken or envisaged by the National Apprenticeship Service (SENA) to provide vocational training facilities to the indigenous peoples, based on their special needs.

30. Article 24. The Committee noted the information regarding the new Social Security Law (Act No. 100 of 23 December 1993), section 257 of which permits indigenous persons to become eligible for pension benefits at an earlier age than the majority population (50 years instead of 65). The Committee notes that the indigenous peoples are starting to set up health resources administrative companies under the new Act and that the process of adapting the Act to take account of the many different indigenous cultures has begun. The Committee asks the Government to keep it informed in this regard and to provide statistics on the number of indigenous persons benefiting from this scheme, and on any other measures taken or contemplated to provide other social security benefits to indigenous communities working in the informal sector.

31. Article 25. The Committee noted the information regarding the health facilities available to indigenous communities, and resolution No. 05078 of 30 June 1992 establishing an advisory commission for the preservation and development of traditional medicines and therapeutic alternatives. The Committee again requests the Government to provide more information on the measures taken or contemplated to meet the health needs of the indigenous communities, including the work of the advisory commission.

32. Articles 26 to 29. The Committee noted the detailed information regarding ethno-education. It again requests the Government to keep it informed in this regard and to indicate the results obtained with specific reference to children and young adults between the ages of 7 and 17.

33. Article 31. The Committee noted that the DAI and the National Recovery Plan (PNR) were taking steps to inform various state entities about the complex legal regime regulating the relationship between the State and the indigenous peoples in the country, including by organizing training seminars and workshops, and by dissemination of relevant material. The Committee requests the Government to keep it informed in this respect.

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1. The Committee takes note of the Government's report and of the comments provided by various representative organizations. The Committee also notes that the Constitutional Court and the Supreme Court, as well as lower courts, have handed down a number of rulings that take the provisions of the Convention into account.

2. The Committee notes that the communication sent by a number of organizations, which was transmitted to the Government on 18 August 1998, refers to the construction of a hydroelectric scheme (the Urrá project) which will flood much of the territory occupied by the Emberá-Katío community and, in the absence of any consultations with the indigenous communities affected, will contravene Article 6 of the Convention. The representative organizations concerned requested that a direct contacts mission be sent with a view to safeguarding the rights of the Emberá-Katío people who are settled in the Alto Sinú region. The Committee hopes that the Government will send its comments on this matter as soon as possible.

3. The Committee notes with interest the promulgation of Decrees Nos. 1396 and 1397 of 8 August 1996 establishing the Committee on the Human Rights of Indigenous Peoples and the National Committee for Indigenous Territories, and the fact that the ILO was invited to participate in some of the subcommittees of these bodies. In this connection, the Committee requests the Government to provide information on the practical activities of these bodies since they were established, in particular information on environmental impact studies which should involve the indigenous communities concerned before any environmental licence is granted, in accordance with section 7 of Decree No. 1337.

4. Article 3. In an earlier direct request, the Committee took note of reports that had been received of human rights violations, including massacres in indigenous communities in Sierra Nevada de Santa Marta, and the fact that the Permanent Commission on Indigenous Rights was conducting investigations into these human rights violations, in cooperation with the Office of the People's Advocate. The Committee asks the Government to indicate whether the Committee on the Human Rights of Indigenous Peoples now has the power to investigate these grave allegations and requests the Government to provide information on the progress made in these investigations.

5. The Committee notes, however, that the Government's report contains no replies to many of the questions raised in its direct request in 1995, in particular concerning the practical application of the majority of Articles of the Convention. While it is clear, from the documentation that accompanied the report, that a considerable amount of theoretical work has been done, especially by the Directorate General for Indigenous Affairs, there is little indication of the extent to which the policies recommended have been formally adopted and put into practice. The Committee is therefore addressing other questions on the application of the Convention in a detailed request which it is sending directly to the Government.

[The Government is asked to report in detail in 2000.]

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1. The Committee notes the Government's report for the period ending 30 June and the attached documentation. It also notes the supplementary information received from the Department of Indigenous Affairs.

2. Article 1 of the Convention. The Committee notes that the Government estimates the indigenous population to number approximately 575,000 based on the census of 1985, and that the 1993 census, which includes a specific indigenous component, will yield more definitive figures. It notes that the 1993 census includes Amerindian ascendancy and the feeling of belonging to an indigenous community as criteria for recognition as being indigenous. It requests the Government to provide information on the results of the 1993 census with its next report.

3. Article 2. The Committee notes the explanation of the Government regarding the adaptation of juridical and institutional provisions to the pluri-cultural framework of the new Constitution. It notes in this respect that the Department of Indigenous Affairs (DAI) has become the Directorate General of Indigenous Affairs attached to the Ministry of Government and that other organizational changes have taken place. It understands from these explanations that although institutions have changed, the focus of various programmes on the specific characteristics of indigenous communities is still in place. The Committee again requests information on the mechanisms for coordination among different institutions.

4. Article 3. The Committee notes from the Government's report that the Permanent Commission on Indigenous Rights established by Decree No. 0715 of 28 April 1992 to protect the human rights and fundamental freedoms of the indigenous peoples, is now functioning, and that it is composed of representatives of DAI, the Presidential Council on Human Rights, the Office of the People's Advocate, the Procurator General's Office and indigenous organizations. The Committee notes that it has received reports of human rights violations, including unlawful killings in indigenous communities in Sierra Nevada de Santa Marta, and that the Permanent Commission is investigating human rights violations, in cooperation with the Office of the People's Advocate, and requests the Government to provide further information in this regard. It also refers the Government to its comments under Article 8.

5. Article 4. The Committee notes with interest an "acción de tutela" in the Constitutional Court recognizing the language of the Curripaco community as an official provincial language in the Guainía Province (Case No. T-36956, Decision No. T-384 of 31 August 1994). It requests the Government to keep it informed of developments in this regard.

6. Article 5. The Committee recalls its previous comment regarding some indigenous communities in resguardos in remote areas who are facing severe hardship with relation to access to basic necessities. It notes from the report that the Government has dealt with this by transferring resources to these communities so that they may decide on how to use these resources. The Committee hopes the Government will provide further information on the practical effect of these actions. See also paragraph 10 below, which appears to be related to this question.

7. Article 6. The Committee notes from the report of the Directorate General for Indigenous Affairs (DAI) presented to the National Congress in May 1994 that the National Indigenous Policy Council (CONAPI) continues to work on the formulation of a new indigenous policy. In this respect, the Committee recalls its previous request for information on: (i) the mechanisms for consultation with, and participation of, the traditional indigenous councils and organizations (recognized as legal entities by Decree No. 1088 of 1993) in the formulation and the adoption of the new indigenous policy, and any other initiatives affecting their well-being; and (ii) the modalities for the representation of indigenous communities in CONAPI and in other state entities active in indigenous affairs. In this connection, the Committee notes the DAI's statement that there is an urgent need to ensure the right of consultation and participation of the concerned communities in any matters affecting their well-being.

7bis. The Committee also notes with interest the information in the report on how it has worked together with the National Indigenous Organization (ONIC) on consultations concerning land rights, and encourages it to continue to follow this policy.

8. Article 7. The Committee notes from the Government's report that the National Recovery Plan (PNR), together with other state entities, has been actively involved in providing development assistance for projects according to the specific characteristics of each indigenous group within the framework of the concept of the sustainable development of natural resources, conservation of bio-diversity, and protection of indigenous cultures. It also recalls that CONAPI is the focal point for defining development priorities and devising a programme of action for indigenous peoples. The Committee therefore requests information on the mechanisms for collaboration between PNR and CONAPI, and the extent of participation of indigenous communities in the formulation, implementation and evaluation of plans and programmes directly affecting them.

9. The Committee recalls its previous request for information regarding a proposal for a decree to establish feasibility studies and prior consultations to be undertaken prior to the implementation of development projects, public works and exploitation of resources; and the decision of the Court of First Instance that a petroleum company was in violation of Articles 7(3) and 15 of the Convention for not carrying out prior impact assessment studies (Proceeding No. 6922). It requests the Government to provide information in its next report of any further developments in this regard.

10. The Committee notes with interest Decree No. 1386 of 1994 according to which the indigenous authorities in the resguardos have the right to decide the manner and form of the share of national revenue which corresponds to their resguardos, and that this is done through projects formulated by the indigenous communities themselves which are presented to the local municipal authorities for consideration, and approval. It requests the Government to provide information on the practical application of this Decree in its next report, including the number of communities which have availed of this opportunity, and the modalities for cooperation between the municipal authorities, CONAPI and other state entities providing assistance to indigenous communities.

11. The Committee recalls its previous comments regarding the "acción de tutela" (guardianship proceedings) in which it requested information on the implementation of the Constitutional Court's decisions regarding: (i) compensation to the affected communities for environmental damages caused by coalmining (Case No. T-859, Decision F 428 of 2 July 1992); and (ii) to halt the construction of a highway (Case No. T-2679, Decision T-528 of 18 September 1992). It requests the Government to provide this information in its next report.

The Committee notes that legislation to allow "acción popular" to be used to protect environmental rights is under consideration and requests the Government to keep it informed in this regard. In this context the Committee notes that the Constitutional Court has upheld the right of indigenous communities to environmental protection by "acciones de tutela" in Case No. T-101, Decision T-415 of June 1992; and in Case No. T-12.559, Decision No. T-405 of 23 September 1993 concerning the installation of a joint US-Colombian military base within the territory of the Resguardo de Monochoa, home of the Huitoto and Muinane people, which allegedly violated Articles 6 and 7 of the Convention. It notes further that in its decision on Case No. T-12.559, the Constitutional Court ruled for the creation of a permanent oversight committee, including representatives from the affected communities, to prepare an environmental management plan, including studies and analysis. The Committee requests the Government to provide further information on the establishment and activities of the permanent oversight committee with its next report.

12. Article 8. The Committee notes that the Special Indigenous Jurisdiction established under article 246 of the Constitution, is now functioning and that the indigenous authorities exercise jurisdiction in the area of conflict resolution within their territories, provided it is in accordance with national law. It notes also that the legislative measures to regulate the coordination among the indigenous and the national jurisdictions have not yet been drafted, mainly due to a lack of knowledge about the different indigenous legal systems, of which there are estimated to be about 84. In addition, the Committee notes that the Council for Constitutional Development (Consejería para el Desarrollo de la Constitución) is preparing a study on the systematization of the juridical systems of the Paez, Wayuú, Tule and Kogi communities which was to be completed in July 1994, which may serve as the basis for a comprehensive compilation of customary law and practices. The Committee requests the Government to keep it informed of further developments in this process.

13. The Committee notes that the Permanent Committee on Indigenous Rights is mediating inter-ethnic and inter-community conflicts arising from land rights, exploitation of natural resources, and legal and juridical representation, in some regions including the municipalities of Juradó, Chacó; Pueblo Rico and Mistratí, province of Risaralda; Caloto and la Paila, province of Cauca; Sierra Nevada of Santa Marta and Perijá in Magdalena and Ceasar Provinces. It requests the Government to provide further information on these cases, the modalities for cooperation between the Permanent Committee on Indigenous Rights, and the relevant traditional indigenous authorities, including the mechanisms for resolving conflicts between customary law and national law. The Committee also notes the Government's comments on the impracticality of providing separate resguardos to certain communities, in reply to its previous request.

14. Article 9. The Committee notes the Government's statement that this Article is of immediate application, and requests further information on its practical implementation.

15. Article 10. The Committee refers the Government to its earlier request for information regarding the practical application of section 22 of the Penal Code whereby an indigenous person who commits an act not considered a serious crime in his or her community may be rehabilitated in his or her natural surroundings.

16. Article 11. The Committee notes the information in the report regarding the employment of children. It requests the Government to provide information on enforcement mechanisms to ensure compliance with the legislative measures in force, with particular reference to the Minor's Code (Decree No. 2737 of 1989) and to indicate whether the labour inspectors in the Special Labour Relations Department have encountered this problem. Please also include statistics on the number of indigenous children engaged in employment when this information is available.

17. Article 14. The Committee notes the continuing efforts of the Government to recognize and protect the rights of ownership and possession of the indigenous peoples to the lands which they traditionally occupy, and that at present there are 377 resguardos and 12 reservas. It notes further that the Organic Territorial Planning Act, which will regulate the demarcation of the Indigenous Territorial Units (Entidades Territoriales Indígenas) (ETIs) remains under consideration. The Committee requests the Government to keep it informed of further developments in this regard, and to provide a copy of the Act when it is adopted. In this context the Committee also notes that in 1992 CONAPI appointed a joint commission with representatives of indigenous organizations and indigenous senators, the DAI and other state entities, to initiate a process of consultations about the basic elements of the Organic Territorial Planning Act, and to elaborate a draft law on the concept of indigenous territories. Please provide further information in this regard.

18. The Committee notes from the report that the Nukak-Maku are the only indigenous group which may be identified as nomadic, and that this is directly related to their hunting and gathering activities. Within the ongoing process of demarcation, creation and restructuring of indigenous lands, the Committee requests the Government to provide information on the measures taken or envisaged to recognize and accommodate the rights of this nomadic group to use lands they do not exclusively occupy but to which they have traditionally had access. In this connection, the Committee notes with interest an "acción de tutela" in which the Constitutional Court emphasized the State's responsibility to protect and guarantee the ethnic and cultural identity of the indigenous Nukak-Maku community (Case No. T-20973, Decision No. T-342/94 of 27 July 1994).

19. The Committee notes that as a general procedure, the process of demarcation of an indigenous territory by INCORA is done under the guidance or direction of the concerned community, and that the land claims of others living within the demarcated area are taken into account in this process. However, it notes that INCORA has encountered some difficulties caused by the dislocation of some indigenous groups by settlers living on their lands; and by the juxtaposition of hunting and fishing rights of different indigenous communities in the same territory especially in the Andean regions of the country. The Committee notes that this is in addition to the problems commented on previously such as the re-allocation of the traditional lands of one community to another resguardo. It requests the Government to provide information on the measures taken or contemplated to resolve conflicting land claims within the ongoing process of demarcation of resguardos.

20. Article 15. The Committee notes from the explanations in the Government's report that sub-surface and non-renewable resources, as well as renewable resources, are the property of the State with the exception of any rights acquired through civil legislation (National Code on Renewable Natural Resources and Protection of the Environment - Act No. 2811 of 1974). It notes further that natural resources such as water, fauna and hydro-biological resources are considered as "res nullius", i.e. they belong to the nation. However, indigenous communities do not require permits or concessions for hunting or fishing as long as this is for their personal use, but permits, concessions or authorizations by the competent authority are required for exploitation for commercial purposes in the same way for indigenous people as for other citizens. In addition, the Committee notes that when INCORA creates or demarcates a resguardo, the indigenous communities in the area do not acquire the rights over public waters, fauna, air or other renewable natural resources, but that in principle, their subsistence rights have a prior claim on renewable natural resources. It also notes that indigenous communities require authorization from the competent regional authority to extract forest produce, and that some communities have been granted such permission. Noting that most indigenous communities are engaged in traditional economic activities such as hunting, fishing and gathering for their livelihood, the Committee requests further indications from the Government of the special measures to strengthen the economic bases of the indigenous communities in the use, management and conservation of all the natural resources within their territories. The Committee considers that, although no special measures appear to have been taken to safeguard specially the rights of indigenous peoples to natural resources as provided in Article 15, these rights do appear to enjoy at least basic protection to the degree that indigenous peoples have exclusive rights over their territories, subject to the consideration in the following paragraph.

21. The Committee notes with interest the "acción de tutela" of the Constitutional Court (13 September 1993) regarding the illegal deforestation in the resguardo of the Emberá-Catío indigenous community. It also notes that a request to the DAI for a permit or concession to extract forest resources from an indigenous area must be accompanied by an authorization from the relevant indigenous authority. The Committee does not note any corresponding requirement for indigenous authorization before exploration or exploitation of other resources in indigenous territories (Article 15(2)), and requests the Government to indicate what decision it may have taken in this respect. Noting that indigenous communities have been adversely affected by the deforestation, mining and other extractive projects undertaken by settlers and mining companies in indigenous lands, it requests the Government to provide further information on the criteria for granting the concessions for extractive and explorative activities in indigenous areas, including the extent to which the requirement for authorization from the relevant indigenous authority is enforced. Please also provide information on their participation in any benefits, or payment for damages incurred as a result of such activities.

The Committee notes with interest the draft legislation, and regulation, on bio-diversity which includes mechanisms to guarantee indigenous communities the benefits of using their traditional knowledge in this field, and requests the Government to keep it informed in this respect.

22. The Committee notes with interest from a summary report of the DAI on exploration and exploitation of natural resources in indigenous areas, that it held consultations with the Uwa community in resguardo Aguantiva and el Pinal in the Eastern Cordillera region regarding seismic exploration in their resguardo by a private company, and that, due to its detrimental effects on their health and well-being, the Uwa decided against the planned exploration. The Committee requests the Government to indicate whether the proposed plans for the seismic exploration have been discontinued.

23. With reference to the traditional economic activities of the indigenous communities and environmental protection, the Committee notes that the Government has entered into a number of agreements with various indigenous communities to this end. However, it also notes that section 7 of Decree No. 622 of 1977 highlights the incompatibility of a national nature park with the creation of an indigenous reserve, and that INCORA and the Colombian Anthropological Institute are to study the establishment of a special regime which will recognize the permanence of the indigenous community and their economic right to renewable natural resource use, without damaging the policy of environmental conservation. The Committee requests the Government to keep it informed in this regard.

24. Article 16. The Committee notes that, if an indigenous community had to be resettled from a resguardo, once the reason for resettlement ceased to exist, the community could return to its traditional lands because it could not lose the collective rights to this land, which right is inalienable under articles 63 and 329 of the Constitution. It also notes the information regarding the resettlement of the Wayuú community in the Caracolí region affected by earthquakes and avalanches. However, the Committee notes that some indigenous communities have been dislocated as a result of settlers taking over their lands. Please provide information on any measures taken or envisaged to facilitate the return of these communities to their traditional lands.

25. Article 17. The Committee notes from the report that INCORA did not hold consultations with the indigenous communities prior to making their titles inalienable. It notes further that this is according to existing legal and constitutional provisions, and that a constitutional amendment would be necessary in order to alter the character of the titles.

26. Article 18. The Committee notes that INCORA has the responsibility for protecting the territorial and cultural integrity of the indigenous territories within the framework of existing laws, but that it is the DAI which has the authority to request police action for protection from unlawful intrusions by settlers. Noting that there are indications of the indigenous communities in the Andean region losing their lands to settlers at a rapid rate, the Committee requests the Government to provide information in its next report of any measures taken or contemplated to protect the land rights of the indigenous people and to prevent others from securing the ownership, possession or use thereof.

27. Article 19. The Committee notes that special agricultural credit facilities for the benefit of indigenous communities have been discontinued, since INCORA is no longer authorized to grant credits and technical assistance to indigenous communities (Decree No. 2147 of 1993), and that FINAGRO facilitates access to credit facilities for indigenous communities on an equal basis with the rest of the population; as a result there is a significant diminishing of assistance specifically directed to indigenous communities. However, it notes the information regarding credit and production facilities available to indigenous communities within a joint project with PNR and the World Food Programme, and requests the Government to keep it informed in this regard, including information on any other measures to facilitate the access of indigenous communities to credit and marketing facilities, and other technical services and assistance. The Committee also notes Act No. 160 of 1994 which creates the National System of Agrarian Reform and Development of Rural Workers and provides for certain benefits for rural workers, including indigenous ones. It requests the Government to provide information on the practical implementation of this Act in its next report.

28. Article 20. The Committee notes from the information in the report that the indigenous communities are mainly engaged in occupations within their areas. Noting that the recruitment and conditions of employment of different workers are monitored by the labour inspectors, it requests further information on any supervisory activities of the Department of Special Labour Relations in indigenous areas. The Committee also requests information on the equal remuneration for work of equal value, medical and social assistance, occupational safety, health and social security benefits, and housing for indigenous workers, as the present report is silent on these matters.

29. Articles 21 and 22. The Committee notes from the Government's report to the UN Committee on Economic, Social and Cultural Rights that Act No. 119 of 1994 provides for the restructuring and modernization of SENA, the National Apprenticeship Service (UN document E/1994/104/Add.2 of 15 August 1994). It requests information on any steps taken or envisaged by SENA to provide vocational training facilities to the indigenous peoples based on their special needs, and devised with their cooperation and collaboration.

30. Article 24. The Committee notes the information in the report regarding the new Social Security Law (Act No. 100 of 23 December 1993), section 257 of which permits indigenous persons to be eligible for pension benefits at an earlier age than the majority population (50 years instead of 65). It requests the Government to keep it informed in this regard, including statistics on the number of indigenous persons benefiting from this scheme, and any other measures taken or contemplated to provide other social security benefits to indigenous communities working in the non-formal sector.

31. Article 25. The Committee notes the information regarding the health facilities available to indigenous communities, and that resolution No. 05078 of 30 June 1992 establishes an advisory commission for the preservation and development of traditional medicines and therapeutic alternatives. It requests the Government to continue to provide further information on the measures taken or contemplated to meet the health needs of the indigenous communities, including the work of the advisory commission.

32. Articles 26 to 29. The Committee notes the detailed information regarding ethno-education. It requests the Government to keep it informed in this regard, including the results obtained with specific reference to children and young adults between the ages of 7 and 17.

33. Article 31. The Committee notes that the knowledge of indigenous legislation among public officials is not very widespread, and that the DAI and the National Recovery Plan (PNR) are taking steps to inform various state entities about the complex legal regime regulating the relationship between the State and the indigenous peoples in the country, including by organizing training seminars and workshops, and by dissemination of relevant material. It requests the Government to keep it informed in this respect.

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The Committee notes with interest the Government's report. It notes with interest its continuing efforts to strengthen the recognition of the rights of the indigenous peoples of the country, in particular in the continuing process of demarcation of indigenous territories. The Committee also welcomes the increased attention to teaching indigenous peoples about their rights under the legislation in force, in order to empower them to defend their own interests. It also notes with interest the decisions of the Constitutional Court upholding the rights of the indigenous peoples, including their right to a separate and distinct identity. In addition, it notes the measures taken to recognize a special legal regime for indigenous peoples, taking into account their customary law. However, it has also noted indications of a diminution of the special attention given to indigenous communities in access to credit and marketing facilities, and hopes the Government will ensure that these communities are not disadvantaged in this respect.

These questions are being developed in more detail in a request being addressed directly to the Government.

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1. The Committee notes the information contained in the Government's first report.

2. Article 1 of the Convention. The Committee notes that the Government estimates the indigenous population to number approximately 575,000 persons, but does not indicate if this information is based on the census scheduled for 1993 which was to have a specific indigenous component. Noting the criteria for recognition as indigenous, which includes a feeling of belonging to an indigenous community (section 2 of Decree No. 2001 of 1988), the Committee would appreciate further information indicating how this fundamental criterion of identification is manifested in practice. Please also keep it informed of any developments regarding the 1993 census.

3. Article 2. The Committee recalls that due to the ratification of the Convention and the adaptation of legal and administrative provisions to a pluri-cultural framework in accordance with the provisions of the revised Constitution of 1991, the various state entities active in indigenous affairs are undergoing a transitional period, including among others the Department of Indigenous Affairs (DAI), the Colombian Institute for Agrarian Reform (INCORA) and the National Recovery Plan (NPR). It also recalls its previous comments under Convention No. 107 and in the observation made under the present Convention this year, that this has resulted in a reduced focus on the specific characteristics of indigenous communities; for instance, with the creation in 1991 of the National Agrarian Fund (FINAGRO) as the central agency responsible for agrarian development financing, special credit facilities for indigenous communities have been withdrawn. The Committee draws the Government's attention to its previous request under Convention No. 107 for further information on the mechanisms for inter-institutional coordination and collaboration, and any measures taken or envisaged to provide direct development assistance specially adapted to the needs of indigenous communities.

4. Article 3. The Committee notes that the National Commission on Indigenous Rights was established (by Decree No. 0715 of 28 April 1992) to protect the human rights and fundamental freedoms of the indigenous peoples. Please provide information in the next report whether it is now functioning, and on the structure, functions and work of the Commission so far.

5. Article 5. The Committee recalls the information provided under Convention No. 107 that some indigenous communities in the resguardos in remote areas were facing severe hardship with relation to access to basic necessities. It requests the Government to provide details of any steps taken or contemplated to relieve this problem.

6. Article 6. The Committee notes that consultation with the National Indigenous Policy Council (CONAPI) - established by Decree No. 436 of 10 March 1992 - is mandatory prior to taking any legal initiatives affecting the indigenous peoples, and recalls that CONAPI is in the process of formulating a new indigenous policy. Noting further that the traditional indigenous councils and organizations are recognized as legal entities (Decree No. 1088 of 1993), please provide information on the mechanisms for consultation with, and participation of, the indigenous organizations in the formulation and adoption of the new policy and any other initiatives affecting their well-being. Noting also that CONAPI includes some indigenous representatives, please provide information on the modalities for their representation in CONAPI, and in other state entities active in indigenous affairs.

7. Article 7. The Committee notes from the Government's report that CONAPI is the focal point for defining development priorities and devising a programme of action for indigenous peoples. Please indicate the mechanisms and modalities for the participation of the traditional indigenous councils in the formulation, implementation and evaluation of development programmes and plans in their regions. In this connection, the Committee also recalls that the Government had earlier reported a proposal for a decree to establish feasibility studies and prior consultations for development projects, public works and exploitation of resources, to be undertaken prior to implementation, and repeats its previous request under Convention No. 107 to keep it informed of any further developments in this regard, including further information on the decision of the Court of First Instance that a petroleum company was in violation of Articles 7(3) and 15 of the Convention for not carrying out prior impact assessment studies (Proceeding No. 6922).

8. The Committee notes that the "accion de tutela" (guardianship proceedings) guarantee the enjoyment of fundamental rights, and that this has been interpreted by the Constitutional Courts as a mechanism to prevent irremedial harm (Case No. T-859, Decision F 428 of 2 July 1992 and Case No. T-2679, Decision T-528 of 18 September 1992). Please indicate whether the decisions of the court: (a) to pay compensation to the affected community for damages to their environment by coalmining (Case No. T-859) and (b) to halt the construction of a highway (Case No. T-2679) have been given practical effect. Please also provide information on any other judicial decisions protecting the rights of indigenous communities from the negative effects of development projects, and on the adoption of legislation to allow the use of "accion popular" initiatives in conflicts relating to environmental rights.

9. Article 8. The Committee notes that within the Indigenous Territorial Units (ETIs), when constituted, and within the resguardos, the indigenous councils have full judicial authority in accordance with their customary laws and practices, as long as this is not contrary to national legislation (article 246 of the Constitution). It also notes indications in the reports of the Department of Indigenous Affairs (DAI) of present and potential conflict in inter-community customs and practices, arising, in particular, as a result of including a number of different indigenous groups in some resguardos, and the Department's suggestion of a systematic and comprehensive compilation of customary law and practice as a step towards resolving these conflicts. The Committee requests the Government to provide information on any measures taken or contemplated in this regard, including the mechanisms for resolving conflicts between customary law and national law.

10. Article 9. The Committee notes the Government's statement that this Article will be implemented by the Organic Territorial Planning Act which is yet to be adopted, and requests the Government to keep it informed of any mechanisms for taking account of indigenous customs in penal matters, including copies of relevant judicial decisions.

11. Article 10. The Committee notes the Government's statement to the United Nations Committee on the Elimination of Racial Discrimination that "it is explicitly forbidden to take account of the personal considerations other than those actually embodied in the law" (UN document CERD/C/191/Add.1). It notes further that whenever an indigenous person commits an act not considered a serious crime in his community, then under section 22 of the Penal Code this person may be rehabilitated in his or her natural surroundings. The Committee requests the Government to provide information on the practical application of this provision.

12. Article 11. The Committee notes that children over the age of 12 may be employed with the permission of the traditional indigenous council, or a responsible government agency with notification to the Ministry of Labour. It requests the Government to provide information on the number of children thus employed, including the criteria for granting the required certificate. In this context, the Committee notes the Government's statement to the United Nations Committee on the Rights of the Child (UN document CRC/C/8/Add.3) that there have been specific cases of the exploitation of children. It requests the Government to provide further information on any enforcement mechanisms in place, or to be adopted, to ensure compliance with the requirements of the Minor's Code (Decree No. 2737 of 1989), and any other generally applicable legislation concerning employment or work of children.

13. Article 14. The Committee notes the efforts of the Government to recognize and protect the rights of ownership and possession of the indigenous peoples to the lands which they traditionally occupy, including the reservas and the resguardos, of which there are reported to be approximately 246. The Committee notes also that the Organic Territorial Planning Act, which will regulate the demarcation of the Indigenous Territorial Units (ETIs), remains under consideration. Noting that the ETIs will have their own politico-administrative system which may include districts, municipalities and provinces, including reservas and resguardos (article 286 of the Constitution), the Committee requests the Government to keep it informed of further developments in their demarcation, including the modalities for ensuring a harmonious integration of the different local governmental entities to be included within ETIs.

14. The Committee notes the Government's statement that the rights of nomadic groups to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities, are recognized by the creation of resguardos. Please indicate the form and manner in which this is implemented within the structure of the resguardos, including whether this implies a requirement for the nomadic communities to settle in one area.

15. The Committee notes that INCORA, which is responsible for the creation, configuration and planning of indigenous lands, is engaged in identifying indigenous lands and restructuring reservas as resguardos. The Committee also notes indications of certain problems inherent in this process. In this connection, the Committee notes that some settlers' lands are included within the resguardos, and that some indigenous communities have had their traditional lands allocated to other resguardos. It also notes that some resguardos include property which earlier title holders may still claim under existing legislative provisions. The Committee requests the Government to provide information on any procedures which may have been adopted or are envisaged to resolve conflicts in land claims within the ongoing process of land demarcation in the country.

16. Article 15. The Committee notes the Government's statement that indigenous peoples' rights extend to both renewable and non-renewable natural resources; but that although non-renewable resources belong to the nation, indigenous peoples have a preference to exploit them under the Mining Code. It also recalls the Government's statement to the UN Committee on all Forms of Racial Discrimination (UN document CERD/C/191/Add.1) that it guarantees the rights of the indigenous communities to renewable natural resources only. The Committee requests the Government to provide further information on any permits granted to indigenous communities to exploit non-renewable natural resources in their lands, and on the procedures whereby indigenous peoples participate in the use, management and conservation of all natural resources, including those to which the Government retains title. Please also provide further information on the rights that indigenous communities have over natural resources within the resguardos.

17. The Committee notes that article 330 of the Constitution stipulates that any exploitation of natural resources in indigenous territories shall be done without damaging the cultural, social and economic integrity of the indigenous communities and that the Government shall ensure the participation of representatives of the communities concerned in taking any such decisions. It also notes that deforestation, mining and other extractive projects undertaken by settlers and mining companies in indigenous lands has caused contamination of rivers and waterways, in addition to soil deterioration, with the resulting impact on the traditional economic activities of the indigenous communities. Please indicate any procedures of consultation with the indigenous communities, and their participation in the benefits of, any explorative activities on their lands and the modalities for payment of compensatory damages sustained.

18. The Committee recalls the Government's policy of environmental conservation (National Code on Natural Resources and Act No. 622 of 1977) and that the establishment of reservas and resguardos within such "special areas of management" must conform with this policy. Recalling also that the rights of the indigenous communities to the land and use of renewable natural resources within their areas is guaranteed, the Committee requests the Government to provide information on any measures taken to specially safeguard the traditional economic activities of indigenous peoples living within the protected areas, including modalities for compensation for any resulting damage.

19. Article 16. The Committee notes the information regarding the Wayú community in the Caracolí region who were relocated as a result of contamination of their traditional lands due to coalmining. The Committee also notes that they were provided with alternative lands and compensation for the damages incurred. Please provide details of any legal and procedural regulations governing relocation. Please also include information on how the right to return to their traditional lands is guaranteed when the reason for their relocation ceases to exist.

20. Article 17. The Committee notes that all resguardos are transferred to the indigenous communities as non-alienable property, and that they cannot transmit land rights outside their own community (article 329 of the Constitution). Please supply information on any consultations undertaken with the peoples concerned when deciding to make all titles inalienable, and whether there are any provisions for altering the character of the titles if the need should arise.

21. Article 18. The Committee recalls the Government's statement in its 1992 report under Convention No. 107 that the greatest threat to indigenous lands comes from illegal settlers. It also notes the Government's efforts to remove them from indigenous lands, including the procedures established by INCORA, and the legislative and punitive regulations prohibiting illegal intrusion onto indigenous lands. Please continue to supply information on any measures taken or contemplated to prevent settlers from unlawful entry upon, or use of, indigenous lands, including details of any penalties imposed for infringements, and on measures for their expulsion.

22. Article 19. The Committee notes that there are a number of agencies responsible for resource allocation to indigenous communities, including INCORA, with FINAGRO as the central authority for agricultural credit facilities. The Committee requests the Government to provide information on any measures taken or contemplated to facilitate the access of indigenous communities to credit and marketing facilities, and any other technical services and assistance to enable them to develop their lands in a more sustainable manner.

23. Article 20. The Committee notes from the information provided by the Government that a special department, the Department of Special Labour Relations, has been established to deal with questions relating to vulnerable groups of workers, including indigenous workers (Decree No. 2145 of 1992). Noting that many indigenous workers are employed in non-wage earning occupations such as subsistence farming, hunting and gathering, in addition to being daily and migrant workers, the Committee requests the Government to provide information on the extent to which the recruitment and conditions of employment of these workers are monitored by the Department. As no information is available regarding equal remuneration for work of equal value, medical and social assistance, occupational safety, health and social security benefits, and housing, please provide further information in these respects. Please also provide information on the frequency of labour inspections in indigenous areas.

24. Articles 21 and 22. The Committee notes the information provided by the Government with respect to vocational training and requests the Government to provide further information on any further measures taken or envisaged to provide such facilities to the indigenous peoples based on their special needs, and devised with their cooperation and collaboration.

25. Article 24. The Committee notes there is a draft proposal before Congress for a social security scheme which proposes that indigenous communities shall benefit from old age pensions at a lower age than is required for other entitled persons. Please continue to provide information on any further developments in this field.

26. Article 25. The Committee notes the information on health care facilities provided by the Government indicating that health care is provided free of charge. It also notes the information communicated by the World Health Organization in its report on "Implementation of the Global Strategy for Health for All by the Year 2000" (Second Evaluation - Vol. 3 Region of the Americas). Noting that many indigenous communities live in remote areas, and that there have been reports of cholera, malaria, tuberculosis and respiratory diseases, in addition to malnutrition, please provide information on any measures taken or contemplated to meet the health needs of the indigenous communities, including steps to provide potable water, sanitation and other health facilities to indigenous communities; any measures taken to assign responsibility and control to the people concerned; participatory means of devising and administering health care; concrete measures to adapt traditional health practices with modern medicines; and any training facilities provided to local community workers.

27. Articles 26 and 27. The Committee notes the constitutional and legal provisions endorsing ethno-education. In this context, the Committee recalls Decree No. 1142 of 1978 which requires educational projects to be undertaken with the participation and consent of the indigenous communities and that such projects have to be adapted to the characteristics of the peoples concerned. Please provide information on the measures taken or contemplated to devise a programme of ethno-education, with the participation or involvement of the peoples concerned, which takes into account their distinct social, economic and cultural characteristics and addresses the specific needs of these vulnerable groups.

28. Articles 28 and 29. The Committee notes from the statistical data annexed to the report that 46 per cent of children and young adults between the ages of 7 and 17 are illiterate, and of the persons who have received some education, only 6.2 per cent are bilingual. It recalls that article 10 of the Constitution provides for bilingual education in indigenous communities with their own linguistic traditions and that the Department of Indigenous Affairs describes indigenous education as "very precarious". Please provide detailed information in the next report on any measures taken or envisaged, with the participation of the peoples concerned, to achieve the objective of equality in education for the indigenous communities, including bilingual educational facilities.

29. Article 31. The Committee notes from the Government's report that information on indigenous rights, including the relevant constitutional provisions, has been disseminated to civil and military authorities. Please provide details of any steps taken or envisaged to promote awareness among other segments of the population, including any educational materials which provide a fair, accurate and informative portrayal of indigenous traditions and cultures.

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The Committee notes with interest the Government's detailed first report on the application of this Convention. It is pleased to note here, as it had under Convention No. 107 (the ratification of which was replaced by the ratification of the present Convention), the Government's efforts over recent years to recognize the rights of the indigenous peoples of the country. It takes particular note of the extension of land rights to these peoples, in a systematic and concentrated fashion.

The Committee also notes, however, that the Government's last report under Convention No. 107 and its first report under the present Convention, have spoken of a certain movement in the country away from a recognition of special rights for indigenous peoples, or from programmes specially adapted to their needs, e.g. in the areas of credit facilities and of recognition of customary law. The Committee hopes that the Government will keep it closely informed of developments in these areas in its future reports.