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

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Bolivia (Plurinational State of) (Ratification: 1991)

The Committee notes with satisfaction the legislation issued by Bolivia with regard to consultation on oil and gas exploitation and the consultations already held, and these will be referred to in greater detail below. In more general terms, the Committee welcomes the efforts made by Bolivia to achieve full participation which establishes the right of indigenous peoples to decide their own priorities for the process of development, in accordance with Article 7 of the Convention.

Articles 2 and 33. Coordinated and systematic action. The Committee notes the dissolution of the Ministry of Indigenous Affairs and Native Peoples (MAIPO). The Committee notes with interest that the Government has established the Unit for Indigenous Peoples’ Rights (UDPI) at the Ministry of the President’s office with the aim of promoting and coordinating the mainstreaming of indigenous peoples’ rights within state institutions. The Committee considers that this mainstreaming initiative could provide important channels for achieving greater coordination of state institutions in the handling of issues covered by the Convention and thereby facilitate coordinated and systematic action for its application. The Committee asks the Government to supply information on the following: (i) the manner in which the UDPI structures and develops this mainstreaming, including the results achieved and any difficulties encountered; (ii) the manner in which the UDPI gives effect to Articles 2 and 33 of the Convention; and (iii) the manner in which the UDPI guarantees indigenous participation according to the terms established by Articles 2 and 33.

Consultation, participation and natural resources: hydrocarbons

Legislation. For a number of years the Committee has been asking the Government to develop mechanisms and procedures for consultation and participation provided for by the Convention in relation to the exploration and exploitation of natural resources, particularly hydrocarbons (oil and gas). The Committee welcomes the efforts made by the Government to implement the consultation and participation rights of indigenous peoples with regard to natural resources. In this regard, the Committee notes the promulgation of Act No. 3058 (Hydrocarbons Act) (sections 114–118), which provides for mandatory consultation; Supreme Decree No. 29033 of 16 February 2007, issuing regulations for consultation and participation regarding oil and gas activities, which develops procedures for consultation and participation; and Supreme Decree No. 29124 of 9 May 2007, which complements the above.

Supreme Decree No. 29033. The Committee notes that, in the preamble to Decree No. 29033, there are multiple references to the Convention and also to the recommendations made by the ILO Governing Body in the report adopted on the representation made by the Bolivian Workers’ Federation (COB) in March 1999 (GB.274/16/7). The Committee notes that this Decree defines an extensive scope of application for consultation in both the personal field (indigenous and original peoples, and peasant farming communities), and in the material field (community lands of origin, community properties and lands to which these groups traditionally occupied or had access to). It establishes that the decision-making and representative bodies of the indigenous and original peoples and peasant farming communities at national, departmental, regional and local levels are the representative institutions to be involved in the processes of consultation and participation. It also regulates the financing of procedures (charged to the project). The Committee notes in particular that, under section 11 (planning), a joint agreement – between the competent authority and the representatives of the indigenous and original peoples and peasant farming communities – must be drawn up on the procedure to be followed for consultation, which will give rise to a memorandum of understanding. The consultation process will then be executed by the competent authority in coordination with the representative bodies of the indigenous and original peoples and peasant farming communities. The results of the consultation procedure will be set down in a validation agreement, which will state the position, observations, suggestions, additions and recommendations agreed upon by the indigenous and original peoples and peasant farming communities which might be affected. The consultation process will be deemed null and void if the established procedure is not respected, on account of false information or obtaining consent through pressure, intimidation, bribery, blackmail or violence, etc.

The Committee notes that efforts are being made to extend consultation to the mining and metallurgy sectors and work is being done on a project for indigenous participation in benefits and environmental control. The Committee would be grateful if the Government would supply information on the progress achieved in this respect and on any other new legislation adopted relating to participation and consultation.

Forced labour, consultation and participation. The Committee will provide a more detailed follow-up regarding forced labour in the context of the Forced Labour Convention, 1930 (No. 29), and in these comments it will examine the general measures adopted and indigenous consultation and participation for the elimination of forced labour. In its previous observation the Committee noted that a plan of action had been formulated, with ILO technical assistance, to eliminate forced labour, most victims of which are members of indigenous peoples, and that consultations on the plan were being held with workers’ organizations, indigenous organizations and the Ministry of Indigenous Affairs and Original Peoples. The Committee notes numerous measures adopted by the Government to eliminate forced labour. It notes that these include Act No. 3351 of 21 February 2006 and its regulations (Decree No. 28631 of 8 March 2006), which gives the Ministry of Labour competence for the development and coordination of policies to eliminate forced labour. By virtue of these competencies, the Ministry of Labour, by means of Supreme Decree No. 29292 of 3 October 2007, established the Inter-Ministerial Council for the elimination of forced labour comprising the following: the Ministry of Justice; Ministry of Rural Development, Agriculture and the Environment; Ministry of the President’s Office; Ministry of Development Planning; Ministry of Production and Micro-enterprise; and chaired by the Ministry of Labour. It indicates that the elimination of forced labour was based on joint action by various ministries and contained a land reorganization component. According to the report, the main difficulty encountered by this objective has been the resistance of landowners to the land reorganization process.

The report states that the following participatory measures were implemented: (i) the Assembly of the Guarani People approved the 2007–08 Inter-Ministerial Plan for Guarani people, the aim of which is to create decent living conditions for the Guarani families registered in the Chaco Boliviano, further to which the Government approved the execution of the Plan by means of Supreme Decree No. 29292; (ii) on 5 November 2008, the Ministry of Labour approved the internal regulations of the 2007–08 Inter-Ministerial Plan approved by the Guarani people and formed an executive board comprising six minister members of the Inter-Ministerial Council for the elimination of bonded labour, forced labour and other similar practices and six representatives of the Assembly of the Guarani People; (iii) other actions of the Ministry of Production and the Ministry of Justice. The Committee encourages the Government to continue its efforts to eliminate forced labour involving indigenous persons and to provide information in this respect, particularly as regards indigenous participation in the formulation, application and monitoring of measures adopted to eliminate indigenous forced labour.

Articles 21–23. Training. The Committee notes with interest that pursuant to Supreme Decree No. 29664 of 2 August 2008, three indigenous universities – of a community, inter-cultural and productive nature – were set up under the collective title of the Indigenous University of Bolivia (UNIBOL). One is for the Aymara people, another for the Quechua people and the third for the Guarani people. Areas of study include: highland (altiplano) agronomy, food industry, textiles industry, veterinary science, zoology, oil and gas industry, forestry and fisheries. Academic training will be in each people´s language, with additional courses for learning Spanish and a foreign language. Thesis projects will be defended in the native language of each region. Diplomas will be awarded at higher technical, bachelor’s degree and master’s degree level. The objective of the three universities is to reconstruct indigenous identities and develop scientific knowledge, know-how and technology on the basis of community criteria and the principles of complementarity, cooperative work, individual and collective responsibility, and respect for the environment. The Committee would be grateful if the Government would continue to supply information in this respect.

Constitutional reform. The Committee notes with interest that on 7 February 2009 the constitutional reform establishing a pluri-national State was promulgated and requests the Government to supply information on the changes that have occurred in law and in practice pursuant to the reform, in accordance with the provisions of the Convention.

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