Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Paraguay (Ratification: 1993)

The Committee notes the Government’s report received in May 2012 and the other information related to the application of the Convention provided in September 2011 in the report for the Forced Labour Convention, 1930 (No. 29). The Government provided further information in an additional report received in August 2012, containing indications by the Paraguayan Indigenous Institute and the Department of Original Peoples and Well-being of the Secretariat for Children and Young Persons (SNNA). Furthermore, the Single Confederation of Workers – Authentic (CUT–A), which collaborates in the Chaco Indigenous Peoples’ Council, provided its comments in August 2012.

Communication from the International Organisation of Employers (IOE). 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.

Part VIII of the report form. The Committee recalls Part VIII of the report from states that, “[a]lthough such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application”. The Committee invites the Government, when preparing the report to be submitted in 2013, to communicate with the representative organizations of employers and workers and to consult organizations of indigenous peoples in the country, through their traditional institutions, on the measures taken to give effect to the Convention. The Committee hopes that the Government will provide a report in 2013 containing specific indications on the matters raised in the present observation and on the results achieved through the measures adopted in order to give effect to each of the provisions of the Convention.

Article 1 of the Convention. Self-identification. The Government confirms the results of the 2008 Indigenous Survey, which indicated that there were around 108,308 indigenous persons in the country. The Government indicates that, taking into account the Committee’s recommendations, three identification criteria will be used in the Third National Census: self-identification, language and geographical origin. The Committee notes with interest that the census is planned for August and September 2012, with the theme: “Different, but from the same country”. The increased growth of the indigenous population was the reason for undertaking the Third National Census; self-identification was included in the Third National Census as a criterion to define the indigenous peoples covered by the Convention. New indigenous communities have been formed and a total of 574 indigenous communities have been registered with the Paraguayan Indigenous Institute (INDI), and the legal personality of 435 of them has been recognized. The Government added that in 2012 identity documents were issued for 1,018 indigenous persons living in very remote communities in the Paraguayan Chaco. Through mobile units, documents were issued in communities bordering on the frontiers of the Plurinational State of Bolivia. The Committee invites the Government to include with its next report updated statistical data on the indigenous communities in the country.

Coordinated and systematic action. Prior consultation. The Committee notes Decision No. 2039/2010 of the INDI, dated 11 August 2010, establishing the requirement to seek INDI intervention in all consultation processes in indigenous communities. Decision No. 2039/2010 considers that Convention No. 169 is an instrument of direct application which does not require legislation for compliance to be compulsory. The complaints were taken into account by the INDI that it had received from representatives of indigenous communities concerning activities undertaken without the formalities and requirements set out in the Convention. The INDI will establish on a case by case basis the procedures to be followed for each consultation, depending on the subject of the consultation and on the organization and culture of the community affected. The INDI, which is the body responsible for indigenous policy and for the application of Convention No. 169, will not consider valid any consultation undertaken without its monitoring and evaluation. The Government indicates that the most outstanding outcomes include those relating to the formulation of tourist itineraries in certain indigenous communities. The Committee invites the Government to provide more detailed information in its report on the consultations held by the INDI in accordance with Decision No. 2039/2010. The Committee requests the Government to provide information on the manner in which the effective participation is ensured of indigenous peoples in the INDI and in other institutions administering programmes which affect them (Articles 2 and 33 of the Convention). The Committee also hopes that its next report will contain information on the manner in which Decision No. 2039/2010 has made it possible to ensure appropriate procedures of prior consultation for the effective participation of indigenous peoples in decisions which may affect them directly (Articles 6 and 7 of the Convention).

Article 7. Participation, development projects and the environment. In reply to previous comments, the Government refers to the information provided by the INDI on the direct discussions with indigenous leaders and organizations for the promotion of ethnic development and to promote the participation of indigenous peoples in the various decision-making bodies with a view to guaranteeing their comprehensive development. The Committee invites the Government to provide detailed information in its next report on the manner in which it is envisaged that indigenous communities themselves are able to decide their own development priorities. Please indicate whether studies have been undertaken to assess the social, spiritual, cultural and environmental impact of development projects on indigenous peoples and the manner in which the indigenous peoples concerned have participated in such projects.

Articles 8 to 11. Customary law and the administration of justice. In its previous comments, the Committee observed that section 437 of the Criminal Procedure Code provides for the possibility of imposing an alternative sentence when such an alternative “complies more effectively with the aims of the Constitution in relation to the cultural identity of the convicted person under conditions more favourable to the latter”. The INDI indicates that it issues opinions on the status of indigenous citizens and the special legislation applicable to them, thereby promoting the dissemination and knowledge of the specific legal regime among the various State institutions. The Committee invites the Government to provide information on court decisions which have applied indigenous customary law and examples of any such decisions that have referred to section 437 of the Criminal Procedure Code.

Article 14. Lands. In its previous comments, the Committee noted the difficulties referred to by the Government in ensuring the application of the provisions that are in force in relation to land claims by indigenous communities. A project has been implemented since 2008 for the regularization of indigenous lands, based on an agreement concluded by the INDI and the World Bank. The Committee notes the judgment of the Inter-American Court of Human Rights, dated 24 August 2010 in the case Xákmok Kásek Indigenous Communities v. Paraguay. The specific reparation measures ordered by the Inter-American Court of Human Rights include the State returning to the indigenous community the 10,077 hectares reclaimed and identified by the Xákmok Kásek community. Among the guarantees that the situation will not re-occur, the Inter-American Court of Human Rights calls on the State to adopt in its domestic law the legislative, administrative and any other kind of measures that may be necessary to create an effective system for the indigenous peoples to reclaim ancestral or indigenous lands, which allows them to exercise their right to property. The CUT–A expresses concern because many indigenous communities have been deprived of their ancestral lands and now do not have sufficient lands or a propitious environment. The CUT–A also recalls the judgment of the Inter-American Court of Human Rights of 17 June 2005 in relation to the Yakye Axa indigenous community requiring the State, among other measures, to identify the ancestral lands of the members of the community and return them free of charge within a maximum period of three years from the date of notification of the judgment. The Committee invites the Government to provide information in its next report on the effect given to the reparation measures ordered by the Inter-American Court of Human Rights in relation to the land claims lodged by indigenous peoples. The Committee also requests the Government to provide information on the effect given to Acts Nos 1372/88 and 43/89, which envisaged a system for the regularization of the settlements of indigenous communities (Article 14(3) of the Convention). The Committee reiterates its request to the Government for the provision of information in the next report on the impact of the INDI/World Bank agreement in relation to this matter.

Article 15. Natural resources. Forestry undertakings. Intrusions. In its previous comments, the Committee noted that the application of resolution No. 139/2007 on environmental and forestry management in relation to lands assigned to indigenous communities had been suspended until adequate consultations were held with indigenous peoples. resolution No. 139/2007 was adopted with the aim of “curbing the obvious plundering taking place in several communities”. The CUT–A indicates that there have been cases of the occupation of the lands of indigenous communities by landless rural people, who have extracted wood and engaged in deforestation. The Committee requests the Government to provide detailed information in its next report on the legislation that is in force protecting the rights of indigenous peoples to natural resources existing on their lands, including their right to participate and to be consulted concerning the use, management and conservation of these resources. The Committee requests information on the activities of the Environmental Inspectorate, the INDI and other government bodies in relation to the subjects addressed in Article 15 of the Convention.

Relocation. In its previous comments, the Committee referred to the displacements of indigenous communities as a consequence of the installations constructed by the bi-national agency Yaciretá. The Government indicates that over 300 indigenous representatives of 50 organizations participated in the First Meeting with Indigenous Organizations of Paraguay, held on 21–22 February 2012 at the premises of the High-Command of the Army, where the importance was discussed and emphasized of reclaiming indigenous lands in the context of the recuperation of the lands of communities that were relocated by the bi-national agencies Yaciretá and Itaipú. The Committee invites the Government to provide updated information in its next report on the manner in which it is ensured that effect is given to the Convention in the case of the indigenous communities affected by the bi-national agencies Yaciretá and Itaipú. The Committee requests the Government to include in its next report the information required by the report form under Articles 16, 17 and 18 of the Convention, including a summary of court judgments relating to the relocation of indigenous communities.

Article 20. Recruitment and conditions of employment. In September 2011, a communication was forwarded to the Government from the International Trade Union Confederation (ITUC), transmitting the observations of the National Confederation of Workers of Paraguay (CNT), according to which indigenous peoples are exploited, working over 12 hours a day in exchange solely for food. In its previous comments, the Committee also referred to discrimination relating to wages and treatment on the basis of the indigenous origins of workers, and particularly those working on ranches in the interior of the country and for Mennonite communities, under conditions which in certain cases constitute situations of forced labour. The Government indicates that situations of forced labour have not been identified in the inspections carried out in ranches or major agricultural undertakings. The Committee also notes the information provided on the inspections carried out in 2011 in stock-raising undertakings in the Chaco region and the other activities promoted by the Chaco Regional Directorate to ensure compliance with labour rights. The Government also established a Subcommission on Fundamental Labour Rights and the Prevention of Forced Labour, composed of representatives of public institutions, cooperatives, employers, trade unions, non-governmental organizations and organizations of indigenous communities from the area. In its comments made in August 2012, the CUT–A reports the testimony of indigenous women and young persons who were relocated from their communities to the municipality of Mariscal Estigarribia and once again denounces the working conditions of women domestic workers and temporary and informal workers, as well as the exploitation of child labour in the department of Boquerón. The Committee invites the Government to continue providing information on the activities of the Regional Labour Directorate of Chaco and the support received by the representatives of indigenous organizations to ensure the application of the provisions of the Convention on recruitment and conditions of employment, the solutions adopted and the penalties imposed. Considering the new comments made by the CUT–A, the Committee requests the Government to add information on the results of the measures taken by the Government for the elimination of forced labour and discriminatory treatment against indigenous peoples, especially in Mennonite ranches and communities. The Committee also refers to its comments on the application of the fundamental Conventions relating to the abolition of forced labour and the elimination of child labour.

Traditional activities. The Committee notes the Government’s indications concerning the training provided to representatives of indigenous peoples and certain courses held for communities. The Committee invites the Government to continue providing information on the measures taken to give effect to Article 23 of the Convention and on the impact of Act No. 3232/2007 on assistance with loans for indigenous communities to strengthen and promote their traditional activities.

Article 24. Social security. The Committee notes with interest that since 2011, a monthly pension has been established for all indigenous adults aged over 65 years, administered by the Ministry of Finance. The Teko Pora Programme also provides subsidies for the indigenous population. The Committee invites the Government to continue providing information on the impact of the measures adopted in extending the coverage of social security schemes to indigenous communities.

Health. The Committee notes the Government’s indications on the strategic regional planning undertaken with the participation of departmental indigenous organizations, community leaders, traditional indigenous health workers, shamans, midwives and experts in medicinal plants. The Government provides information on the recruitment in 2010 and 2011 of indigenous health promoters. The Committee invites the Government to provide updated information in its next report on the measures adopted under Article 25 of the Convention.

System of mutual hospital assistance. The CUT–A attached to its comments of August 2012 the text of Act No. 3050 of October 2006 creating a system of mutual hospital assistance for comprehensive and specialized medical care for the indigenous population of the Chaco region. The purpose of the mutual system is to cover part of the costs of the indigenous population of the Chaco. The CUT–A expresses reservations concerning the constitutionality of the system of mutual hospital assistance when applied exclusively to one region of the country, and notes that it does not cover all social security benefits. The Committee invites the Government to indicate in its next report the regulations issued under Act No. 3050/2006 and the manner in which the health services and benefits envisaged by the mutual assistance system are provided to beneficiaries.

Education and means of communication. Policies for indigenous children. Programme of action in the department of Caaguazú with the Mbya Guaraní indigenous communities. The Government indicates that Act No. 3733 of 2009 allocated to the indigenous sector 1 per cent of the grants provided for tertiary level education. The CUT–A expresses concern at the very high level of illiteracy that continues to affect the indigenous population. The Committee recalls that 51 per cent of the indigenous population is illiterate. The Committee notes with interest the activities undertaken by the Department of Indigenous Peoples and Well-being of the SNNA, which has been in operation since 2010, and particularly in 17 urban indigenous settlements and in the department of Caaguazú with the Mbya Guaraní indigenous communities. A programme of action was developed through prior consultation with the communities concerned and using a methodology based on the ancestral practices of the Mbya Guaraní community. With the support of the ILO International Programme for the Elimination of Child Labour (ILO–IPEC), the CUT–A and the Rural Association of Paraguay implemented mini-programmes in 2011–12 to promote social dialogue and eradicate child labour in the department of Caaguazú. The Committee welcomes these initiatives, which benefit from the participation of the social partners and indigenous organizations. The Committee invites the Government to provide updated information in its next report on the result of the activities carried out by the General Directorate of Indigenous School Education and the Department of Original Peoples and Well-being, in particular with regard to the fight against illiteracy (Articles 26 to 31 of the Convention).

Article 32. Contacts and cross-border cooperation. The INDI refers to the consultations held by the Office of the High Commissioner for Human Rights in the region and the publication of guidelines for the protection of isolated indigenous peoples and for initial contacts in the Amazon region, Gran Chaco and the eastern region of Paraguay, published in May 2012. In its previous comments, the Committee noted a cooperation agreement concluded between Paraguay and the Plurinational State of Bolivia in June 2009 concerning the Ayoreo people, whose ancestral lands cover a large part of the northern region of the Paraguayan Chaco and the south of the Plurinational State of Bolivia. The Committee requests the Government to provide information in its next report on the establishment of the bilateral agency responsible for addressing the requirements of the territorial unity of the Ayoreo people and other agreements concluded with neighbouring countries on the subjects covered by the Convention. Please also provide information on the effect given to the guidelines for the protection of isolated indigenous peoples and for initial contacts in the Eastern region of Paraguay.