REPRESENTATION (article 24) - COLOMBIA - C169 - 2001

Central Unitary Workers' Union (CUT), Colombian Medical Trade Union Association

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Report of the Committee set up to examine the representation alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Central Unitary Workers' Union (CUT)and the Colombian Medical Trade Union Association

Report of the Committee set up to examine the representation alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Central Unitary Workers' Union (CUT)and the Colombian Medical Trade Union Association

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

Fourth Supplementary Report: Representation alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Central Unitary Workers' Union (CUT) and the Colombian Medical Trade Union Association (ASMEDAS)
I. Introduction
1. In communications dated 3, 4 and 22 November 1999 the Central Unitary Workers' Union (CUT) and the Colombian Medical Trade Union Association (ASMEDAS) (Antioquia Division) made a representation to the International Labour Office under article 24 of the Constitution of the International Labour Organization alleging non-observance by the Government of Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).
2. Convention No. 169 was ratified by Colombia on 7 August 1991 and came into force for that country on 7 August 1992.
3. The provisions of the Constitution of the International Labour Organization concerning the submission of representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure followed for representations is governed by the Standing Orders as revised by the Governing Body at its 212th Session (March 1980).
5. In accordance with articles 1 and 2(1) of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Colombia of it and brought it before the Officers of the Governing Body.
6. At its 277th Session (March 2000) the Governing Body, on the recommendation of its Officers, decided that the representation was receivable and set up a tripartite committee to examine it, made up of Mr. Felipe Ernst (Government member, Chile), Mr. Jorge A. de Regil Gómez (Employer member, Mexico) and Mr. F. Ramírez León (Worker member, Venezuela).
7. In accordance with the provisions contained in clauses (a) and (c) of paragraph 1 of article 4 of the Standing Orders, the Committee invited the Government to present its observations on the representation and the complainant organizations to furnish all further information that they wished to make known to the Committee.
8. The Government sent its observations on the representation in a communication dated 18 December 2000.
9. The Committee met in November 2001, during the 282nd Session of the Governing Body, to examine the representation and, having examined the information submitted by the parties, adopted this report.
II. Examination of the representation
A. Allegations by the complainant organizations
10. The Central Unitary Workers' Union (CUT) and the Colombian Medical Trade Union Association (ASMEDAS) (Antioquia Division) allege that the Government of Colombia has not complied with the provisions of the Indigenous and Tribal Peoples Convention, 1989 (No. 169). The allegations submitted centre on the construction and operation of the Urrá hydroelectric dam, and on the fact that the Government did not conduct the process of prior consultation in respect of this project with the indigenous communities affected, in accordance with the provisions of the Convention.
11. The Committee understands that the Embera Katío people of Alto Sinú live in the upper reaches of the Sinú river basin in an area covering 103,517 hectares. The population is calculated at 2,400 people, grouped into 450 families, who live close to the rivers in Kuranzadó, Keradó and Iwagadó. Sixty-two per cent of the population is under 18 years of age, while only 5 per cent is over 50 years old. The traditional economic activity of this people was based on hunting, gathering and fishing and it is alleged that until the course of the river was altered due to the construction of the hydroelectric dam in question, fish was the population's principal source of food.
12. The CUT and the ASMEDAS allege that the Government, through the then Colombian Institute for Natural Resources (INDERENA) - the current Ministry for the Environment - granted through resolution No. 243 of 13 April 1993 an environmental licence to the Atlantic Coast Electric Corporation (CORELCA), a state enterprise, for the engineering work on the Urrá I hydroelectric dam and the deviation of the course of the Río Sinú (Urrá project) in the district of Tierralta, department of Córdoba. It is alleged that the ancestral lands of the Embera Katío people of Alto Sinú and of the Zenú people of San Andrés de Sotavento are situated in the zone of impact of the Urrá project, but that despite the fact that the project would affect the ancestral lands of those communities, the Government did not conduct prior consultations with the peoples affected before granting the licence, in contravention of Article 6 of the Convention. (Endnote 1)
13. The CUT and the ASMEDAS maintain that the construction of the dam caused irreparable damage to the Sinú river basin and to the Embera Katío community of Alto Sinú. The complainant organizations also allege that, in response to the lack of prior consultation, the representatives of the Embera Katío people of Alto Sinú tried to make themselves heard by the Government authorities and by the Urrá enterprise, but without success. They also allege that the state institutions and the Urrá enterprise itself promoted acts of interference in the internal affairs of the Embera Katío community of Alto Sinú that aggravated the intra-ethnic conflicts of that people as well as those between it and other social sectors in the region.
14. The work on the construction of the dam began in 1993. The CUT and the ASMEDAS state that in 1998 the Urrá Multipurpose Enterprise Ltd. ("Urrá enterprise"), under state ownership, finished the construction work under the partial licence granted by the then INDERENA. (Endnote 2) The licence for the following stages of the project - the filling and operation of the dam - remained pending. (Endnote 3) In September 1997 the Urrá enterprise requested an amendment to the environmental licence granted by the INDERENA in order to complete the filling and operation stages.
15. The CUT and the ASMEDAS maintain that the construction of the Urrá project and the deviation of the river Sinú in January 1996 substantially reduced fishing and caused intense social, cultural, economic and political inter-ethnic conflicts that affected the Embera Katío community. Moreover, the construction and operation of the dam altered traditional relations between the Embera Katío people of Alto Sinú and the river, which were particularly apparent in the existence of sacred sites and current and ancestral cemeteries. They also allege that when the dam was filled, many of these sites were flooded, together with the best land which provided the basic agricultural products needed to feed the peoples concerned.
16. On 22 November 1994 an agreement was concluded between the Urrá enterprise, the indigenous community and the National Indigenous Organization of Colombia (ONIC) which established the foundations for the consultation process prior to granting the licence for the second stage of work. It was agreed that the compensation for the impact of the work would consist of the preparation and implementation of a development plan, then called the Ethno-development Plan (of 2 October 1995). Among other things, the Plan contained eight programmes approved by the Urrá enterprise relating to health, education, livestock development and sustainable management of the traditional habitat of the Embera Katío people. (Endnote 4) On 23 October 1996 an agreement was reached between the enterprise, the Colombian Institute of Agrarian Reform (INCORA), the Ministry for the Environment, the Ministry for Mines and Energy and the Embera Katío people which stipulated, inter alia, that the Urrá enterprise would comply with the commitments contained in the Ethno-development Plan, would finance the Plan until the year 2000, and would improve its efforts in fish transportation. The Embera Katío people also demanded as a precondition to the land being flooded, that environmental services be paid for to maintain the forests and aquatic resources, and that it receive a share in the income from the generation of electricity. (Endnote 5)
17. According to the information submitted by the complainants, the INCORA set up two indigenous reserves on the traditional lands of the Embera Katío people - the Karagaví and the Iwagadó areas - by way of resolutions Nos. 002/93 and 064/96. Although traditionally of a fragmented and unstructured political character, in 1995 the Embera Katío communities united under a centralized government in the face of the events relating to the construction of the dam and elected a Cabildo (council of tribal elders) Mayor to represent them in the consultation process. However, at the end of 1996 an internal conflict arose within the Embera Katío communities concerning the composition of the Cabildo Mayor and a solution was sought to the conflict through the appointment of two Cabildos Mayores, one for each reserve. On 1 December 1997, through resolution No. 3239, the Mayor of Tierralta revoked his earlier recognition of the appointment of the two Cabildos Mayores and called another assembly to settle the conflict. This new election did not settle the conflict. In 1997 the Urrá enterprise stopped concluding contracts under the Ethno-development Plan owing to a crisis regarding the legitimacy of the indigenous representatives.
18. It is alleged that in September 1997 the Urrá enterprise requested an amendment to the environmental licence in order to proceed with the stages involving the filling and operation of the hydroelectric dam. In 1999, the State approved the amendment of the environmental licence through resolution No. 838 of October 1999 and permitted the enterprise to fill and operate the dam. The CUT and the ASMEDAS maintain that this action was decided without due prior consultation of the Embera Katío people and the Zenú people as required under the Convention. It is alleged that the flooding process began on 18 November 1999.
19. The complainants allege that the enterprise did not obtain the consent of a number of indigenous communities for the implementation of the transfer and relocation plan because those communities did not agree with the evaluation of the lands or with the changes that corresponded to them. Likewise, it is alleged that the State did not respect the cultural and religious traditions of the peoples concerned in the case of the transfer of the cemetery of the Nawa and Aborromía communities, which was presumably carried out by persons from outside the communities and in the absence of their spiritual leaders.
20. The CUT and the ASMEDAS allege that representatives of the Embera Katío people of Alto Sinú and of the Zenú people tried unsuccessfully to consult the government authorities, in particular the Ministry for the Environment (a national body which replaced the INDERENA) and the Ministry of the Interior (responsible for coordinating state affairs relating to indigenous peoples), as well as representatives of the enterprise, in order to seek solutions to problems raised by the Urrá project, and to consider associated future problems. They also allege that the Government did not enter into prior consultations with the peoples affected by the Urrá project.
21. According to the complainant organizations, following unsuccessful efforts to initiate consultations, the Embera Katío people of Alto Sinú was forced to take concrete action; this included the occupation of the Colombian Institute of Agrarian Reform (INCORA). On 20 March 1998, representatives of the peoples involved, with the support of the ONIC, the Office of the People's Advocate and the Colombian Commission of Jurists, presented an application for protection of their basic constitutional rights (acción de tutela) against the Urrá enterprise and the Mayor's Office of the municipality of Tierralta for the alleged violation of their fundamental rights.
22. It is alleged that from March to July 1998, while the application for protection was pending, the Office for Indigenous Affairs of the Ministry of the Interior and the Ministry for the Environment began a process of illegal consultations with a dissident sector of the Embera Katío people of Alto Sinú which had been influenced by the Government and the enterprise in such a way as to favour its own interests. The CUT and the ASMEDAS allege that, in this connection, the Government issued Decree No. 1320 of 1998 through which it sought to regulate the consultation process and legitimize the "false" consultation process between the Government and the dissident sector of the Embera Katío people of Alto Sinú. (Endnote 6) It is alleged that the decree established a procedure whereby decisions that should originally have been taken by the peoples concerned would end up in the hands of the Government.
23. On 30 July 1998, a few days before the dam was due to be filled, the Constitutional Court ordered that operations should be suspended. It is alleged that during this time acts of intimidation occurred and, in particular, that on 25 August 1998 a spiritual leader of the community was assassinated by paramilitaries. (Endnote 7)
24. In its Judgement No. T-652 of 10 November 1998 the Constitutional Court of Colombia, assuming jurisdiction for the application for protection of its basic constitutional rights, ruled in favour of the Embera Katío people of Alto Sinú. The ruling protected the fundamental rights of that people, inter alia, "to survival, to ethnic, cultural, social and economic integrity, to participation and to the due process of the Embera Katío people of Alto Sinú". The Court ordered, inter alia, that the Colombian Institute of Agrarian Reform and the Ministry of the Interior should take the necessary measures to unify the reserves of the Embera Katío people of Alto Sinú, that the Urrá enterprise should compensate the people "with a sum that at least ensures its physical survival", that a consultation process be carried out prior to the filling and operation of the dam, that financing of the plan designed to ensure that the traditional practices of the people concerned might be replaced by productive practices be provided, and that the programmes associated with the Ethno-development Plan be resumed. The Court also ordered that Decree No. 1320 should not be applied to the process of consultation with the Embera Katío people, and that the Mayor's Office of Tierralta should recognize the people's traditional authorities, and should register them.
25. The CUT and the ASMEDAS allege that, despite the ruling by the Constitutional Court, the government authorities have not fulfilled their obligation of prior consultation with the peoples involved and state that the Government has failed to comply with other aspects associated with the full application of the Convention. They also allege that while the mechanisms and criteria contained in Decree No. 1320 have not been applied in the case of the Embera Katío people of Alto Sinú by order of the Constitutional Court, the Government continues to use them, most recently in the case of the U'wa people (see document GB.282/14/3).
26. The CUT and the ASMEDAS observe that the ruling by the Constitutional Court ordered the Ministries of the Interior and for the Environment not to apply Decree No. 1320 of 1998 in consultations with the Embera Katío people because "the application of Decree No. 1320 of 1998 to this consultation process would manifestly be contrary to the Constitution and to the standards incorporated into national legislation through Act No. 21 of 1991", (Endnote 8) through which Convention No. 169 was adopted. Despite the ruling, the Ministry for the Environment granted the environmental licence to the enterprise through resolution No. 838 of 5 October 1999. The complainant organizations also allege that neither the Government nor the enterprise have fully complied with the provisions of the Constitutional Court's decision.
27. It is alleged, furthermore, that in July 1999 a process of prior consultation was initiated with the Cabildos Mayores of Río Verde and Río Sinú, and the traditional authorities of these Cabildos. Once consultations had begun, studies were carried out into the environmental, territorial, social, political, cultural and economic impact of the Urrá project and into possible preventive, mitigating, reparative and compensatory measures relating to that impact. As a result of these studies, negotiations began on the relevant issues on 18 August 1999 in Coveñas (Sucre). The CUT and the ASMEDAS allege that, despite the request by the Embera Katío people of Alto Sinú to engage in a single consultation bringing together the whole of the community concerned, the Government met with minority sectors, prompting divisions through partial agreements.
28. The complainant organizations also maintain that the local authorities of Tierralta unjustifiably hindered the registration of the leaders elected by the Embera Katío communities, and that this action resulted in a delay in the beginning of the next stage of consultations ordered by the Constitutional Court and in the refusal by the enterprise and the government authorities to recognize the indigenous leaders elected by the peoples to represent them in the consultations. The complainants allege that these practices by the Government violate Article 17 of the Convention.
29. The CUT and the ASMEDAS allege that since the beginning of the consultations ordered by the Constitutional Court, a number of indigenous leaders and representatives of the Embera Katío people have been assassinated by paramilitary units and others continue to receive death threats. For the above reasons, and due to the adoption and arbitrary application of resolution No. 838/99, the complainants maintain that the Government has violated Articles 33 and 35 of the Convention.
The Government's observations
30. The Government states in its reply that associations between the indigenous Embera Katío people of Alto Sinú and the Urrá project began in 1980 with the "feasibility and design" phase of the project and the preparation of socio-economic studies in its area of impact. According to the Government, these associations began with the company Electric Interconnection Ltd. (ISA) and continued with CORELCA.
31. The Government states that in 1994 the Urrá Multipurpose Enterprise Ltd ("Urrá enterprise") took over and organized a series of information and consultation meetings to discuss the first plans, programmes and projects that were scheduled to be implemented in the short term. According to the Government this process resulted in the conclusion of agreements dated 22 November 1994, which included a Plan for Immediate Action (to attend to the needs of the community in the areas of health, education, the construction of infrastructure, and basic sanitation), an Ethno-education Programme and the design of an Ethno-development Plan (to mitigate and provide compensation for the impact of the project).
32. The Government indicates that a public environmental hearing was held on 3 March 1995 for the purpose of encouraging the participation of the people affected by the project, including the indigenous communities of Alto Sinú. The Government states that on 7 December 1995 new agreements were signed in respect of the Ethno-development Plan, the replacement of the land that would be flooded and the express authorization of the communities to permit the enterprise in charge of the project to use the lands for its purposes.
33. The Government states that the Ethno-development Plan started to be implemented in 1996, but then in 1997 the Embera Katío community of Alto Sinú split into two sectors: (1) the Alliance of Cabildos Menores of Río Esmeralda and part of Río Sinú (corresponding to the former Karagabí reserve), and (2) the Cabildos Mayores of Río Sinú and Río Verde (corresponding to the former Iwagadó reserve). It maintains that the Embera mobilization relates only to the Cabildos Mayores of Río Sinú and Río Verde and not to the entire people. It indicates that the communities represented by the Alliance of Cabildos Menores of Río Esmeralda and part of Río Sinú declared their agreement with the consultation process and their interest in the agreements being respected and the environmental licence being complied with.
34. In 1997, the community represented by the Cabildos Mayores of Río Sinú and Río Verde lodged an application for the protection of their basic constitutional rights. The Government indicates that they were denied the protection requested at first and second instance.
35. On 15 September 1997, the Urrá enterprise requested the Ministry for the Environment to amend the environmental licence granted by the INDERENA, in order to obtain authorization for the filling and operation stages of the dam. As part of the administrative process for the amendment of the licence, the Ministry for the Environment ordered the prior consultation of the Embera Katío people of Alto Sinú through Order No. 170 of 26 March 1998.
36. By way of Order No. 327 of 21 May 1998, the Ministry for the Environment ordered that a public hearing be held; this took place on 11 June 1998 with the participation of the indigenous communities, including other communities in addition to the Embera Katío people. On 10 June 1998, the Ministry of the Interior called for all the indigenous peoples identified in the area of impact of the project to begin the consultation process. According to the Government, the call was accepted by the Zenú community of the reserve of San Andrés de Sotavento and by the Alliance of Cabildos Menores of Río Esmeralda and part of Río Sinú, but the community represented by the Cabildos Mayores of Río Sinú and Río Verde refused to begin consultations as it was awaiting the final ruling on the application for protection it had submitted.
37. The Government states that the consultation process with the Zenú community was recorded as beginning on 26 June 1998, and ending on 31 July 1998. This process led to agreements which are mentioned in resolution No. 838/99. Likewise, the consultation process with the community represented by the Alliance of Cabildos Menores of Río Esmeralda and part of Río Sinú was recorded as beginning on 3 July 1998.
38. The Government states that between the end of 1997 and the beginning of 1998, when the implementation period of the various contracts involved in the Ethno-development Plan ended, the Urrá enterprise decided not to extend any of them because according to a recommendation by the National Indigenous Organization of Colombia (ONIC), as well as by certain indigenous communities, no further agreements should be signed until the question of the representativity of the authorities of the indigenous Embera Katío people of Alto Sinú had been settled. According to the Government, this meant that the procedure to continue implementing the ethno-development programmes could not be resumed until the matter of the representativity of the indigenous communities had been clarified.
39. The Government states that the ruling of the Constitutional Court in Judgement No. T-652/98 of 10 November 1998 interrupted the consultation process that had been under way prior to that date. The Government adds that the Court established that the Urrá enterprise and the indigenous communities should negotiate an agreement on certain issues included in the consultation programme established by the Court, which granted an initial deadline of three months for the process, as from 2 December 1998. The established deadline could be extended by a maximum term of six (6) months, which was done.
40. In March 1999, the Ministry of the Interior announced that the consultation process should continue and fixed a further meeting for 17-18 March, which was attended by the two sectors of the Embera Katío people of Alto Sinú. However, the Cabildos Mayores of Río Sinú and Río Verde declared that in their view it was not a matter of continuing the process as they had not yet accepted the initial call by the Ministry of the Interior and would not accept it until all the contracts corresponding to the Ethno-development Plan had been signed.
41. The Government maintains that the community represented by the Cabildos Mayores of Río Sinú and Río Verde did not accept the official call for consultations to begin on 2 May 1999. In May 1999 the Ministry of the Interior called for the end of the consultation process, but only the Alliance of Cabildos Menores of Río Esmeralda and part of Río Sinú attended. The Ministry held consultations with the Alliance between 12 and 28 May 1999. This process resulted in agreements on issues relating to compensation for the loss of the use and enjoyment of the lands that were to be flooded and to measures to establish valid title to the reserve for the Embera Katío people of Alto Sinú. The Government states that the consultation work was suspended owing to the fact that on 24 May 1999 the High Court of Montería notified the parties of the extension of the deadline for negotiations - by three additional months - up until 2 September 1999.
42. On 11 August 1999, the communities contacted the Urrá enterprise in order to begin negotiations and complete the process. Consultations were held on 18 and 20 August 1999 with the Alliance of Cabildos Menores of Río Esmeralda and part of Río Sinú and the Cabildos Mayores of Río Sinú and Río Verde. According to the Government, the consultations were held separately, because the Embera Katío communities were unable to reach agreement about working together, as indicated in the communication dated 23 August 1999 issued by the Alliance of Cabildos Menores of Río Esmeralda and part of Río Sinú.
43. The Government indicates that it worked with the two sectors of the Embera Katío people until 2 September 1999 inclusive, when the deadline fixed by the Constitutional Court to reach agreements expired. It also states that during the period fixed by the Court, 17 meetings were conducted with the Embera Katío communities, five with the Cabildos Mayores of Río Sinú and Río Verde, ten with the Alliance of Cabildos Menores of Río Esmeralda and part of Río Sinú, and there were two joint meetings. The Government notes that it managed to reach agreement on all points of the programme established by the Court with the Alliance of Cabildos Menores of Río Esmeralda and part of Río Sinú. On the other hand, it did not reach agreement with the communities represented by the Cabildos Mayores of Río Sinú and Río Verde.
44. On 14 September 1999, the Cabildos Mayores of Río Sinú and Río Verde filed an action for specific performance to the High Court of the Judicial District of Córdoba - Labour Division, in which they alleged that the judgement of the Constitutional Court relating to the consultation programme had not been complied with. On 5 October 1999, the High Court issued an order which concluded that the authorities had complied with the judgement of the Constitutional Court. That same day, 5 October 1999, the Ministry for the Environment issued resolution No. 838 through which it authorized the filling and operational stages of the project, and ordered that the Embera Katío people be compensated. The Government indicates that resolution No. 838/99 took up the proposal made by the communities represented by the Cabildos Mayores of Río Sinú and Río Verde and that it granted those communities the same as it had granted the Alliance of Cabildos Menores of the Río Esmeralda and part of Río Sinú. The Government observes that the Ministry for the Environment provided that the Urrá enterprise should pay an annual sum to the community concerned for a period of 15 years as a substitute for benefits, according to the proposal of the Constitutional Court in its Judgement No. T-652.
45. The Government indicates that only the Cabildos Mayores of Río Sinú and Río Verde expressed a lack of agreement with the consultation process and with resolution No. 838/99. It also states that the Alliance of Cabildos Menores of Río Esmeralda and part of Río Sinú expressed its agreement with the consultation process and with the resolution in a communication dated 21 October 1999.
46. The Cabildos Mayores of Río Sinú and Río Verde lodged an application for the judicial review of the facts against resolution No. 838/99 which was settled through resolution No. 965 of 1999.
47. In December 1999, the Cabildos Mayores of Río Sinú and Río Verde took some of their members to the premises of the Ministry for the Environment and they stayed in the gardens in front of the Ministry until their petitions relating to land, participation in benefits, relocation and human rights were attended to. The Government indicates that the parties reached an agreement on 19 April 2000 and the communities returned to their place of origin.
48. With regard to the allegations concerning the registration of the indigenous authorities, the Government indicates that differences arose with some of the members of the indigenous community with respect to their registration. As a result, an action for specific performance was filed against the Mayor of Tierralta, which was decided in favour of the community. Consequently, all the groups that freely wished to be included as members of the indigenous community were registered.
49. The Government indicates that, in compliance with the provisions of Judgement No. T-652/98, through resolutions Nos. 052 and 053 of 23 December 1998 the INCORA ordered the unification of the reserve of the Embera Katío people of Alto Sinú.
50. Concerning the relocation of the Embera Katío families situated in the flood zone, the Government states that 36 families were relocated but that some families refused to resettle.
51. As regards the allegations that the Urrá enterprise was carrying out some preliminary damming to make one of the construction tasks feasible, in contempt of the provisions made by the Constitutional Court, the Government observes that at the end of 1998 the Urrá enterprise closed a tunnel so as to be able to build the floodgates to control the discharge from the dam, an activity it maintains was authorized by the INDERENA through the environmental licence granted in 1993 and which would therefore not require any further authorization by the Ministry for the Environment.
52. The Government maintains that the Ministry for the Environment fully complied with the obligations imposed by the Constitutional Court as a condition for the authorization of the filling and operating stages of the dam, and that this was confirmed by the ruling of the High Court of the Judicial District of Córdoba, the authority that dismissed the action for specific performance.
53. With respect to the allegations concerning assassinations and threats directed against spokespersons for the community, the Government indicates that the investigations are still at the preliminary stage.
III. The Committee's conclusions
54. The Committee notes the extensive and detailed information provided in this case both by the complainant organizations and by the Government.
55. The Committee observes that, following the ruling issued by the Constitutional Court in Judgement No. T-652 of 10 November 1998, the reserve of the Embera Katío people was unified (through resolution No. 053 of December 1998) and the Mayor of Tierralta registered and recognized the leaders elected by the Embera Katío people. Likewise, an agreement was reached on 19 April 2000 between the Urrá enterprise, the Government of Colombia and the communities represented by the Cabildos Mayores of Río Sinú and Río Verde relating, inter alia, to land, to participation in benefits, to relocation, to the environmental plan "Jenene", and to human rights.
56. Despite the above, the Committee wishes to express its concern at the lack of consultation on which this representation is based. In this connection, the Committee considers that the Convention cannot be applied retroactively. However, the Convention is applicable to anything that happens after the date of its entry into force. In its Judgement No. T-652, the Constitutional Court concluded that no process of prior consultation had been carried out with the Embera Katío people before the first environmental licence was granted in 1993 for the construction of the dam and the deviation of the Río Sinú, a fact that the Committee considers to be in violation of Articles 6 and 15(2) of the Convention, which came into force in Colombia on 7 August 1992. It can also be seen from ruling No. T-652 that the government authorities recognized that there had been no process of prior consultation, and that they referred to the fact that there were no rules to regulate the consultation process in 1993. The Committee observes that Decree No. 1320 of 1998, which "regulates prior consultation with the indigenous and black communities for the exploitation of natural renewable resources on their lands" did not apply in the case of the consultations carried out with the Embera Katío people for the filling and operation stages of the dam because the Constitutional Court considered it to be in violation of the Constitution of Colombia as well as of the standards incorporated into national legislation through Act No. 21 of 1991 (see also document GB.282/14/3).
57. In this context, the Committee calls the Government's attention to Article 6 of the Convention which establishes the obligation for States to consult the peoples concerned beforehand. Article 6 provides that:
1. In applying the provisions of this Convention, governments shall: (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;
(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;
(c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.
2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
58. The Committee considers that the concept of prior consultation established in Article 6 should be understood in the context of the general policy expressed in Article 2, paragraphs 1, and 2(b), of the Convention, which provide as follows:
1. Governments shall have the responsibility for developing, with the participation of the peoples concerned, co-ordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity.
2. Such action shall include measures for:
(...)
(b) promoting the full realisation of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions.
59. The Committee recalls that, in the discussion concerning the adoption of Article 6 of the Convention on prior consultation, a representative of the Secretary-General stated that in drafting the text the Office had not intended to suggest that the consultations referred to would have to result in the obtaining of agreement or consent of those being consulted, but rather to express an objective for the consultations. (Endnote 9) However, the Committee considers that the requirement of prior consultation should be considered in the light of one of the fundamental principles of the Convention, as expressed in Article 7, paragraphs 1 and 3, which establish as follows:
1. 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 to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.
(...)
3. Governments shall ensure that, whenever appropriate, studies are carried out, in co-operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities.
60. In addition, Article 15 provides that:
1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be especially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, 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 peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.
61. In the opinion of the Committee, while Article 6 does not require consensus to be obtained in the process of prior consultation, it does provide that the peoples concerned should have the possibility to participate freely at all levels in the formulation, implementation and evaluation of measures and programmes that affect them directly.
62. In this context, the Committee wishes to express its concern about information received alleging that during the period of the consultations arranged for 18 March 1999 by the Directorate General of Indigenous Affairs of the Ministry of the Interior (and which continued until 2 September 1999), criminal incidents took place aimed at intimidating members of the Embera Katío community, including the assassination on 24 April 1999 of Lucindo Domicó Cabrera, one of the leaders and spokespersons of the Embera Katío people in the consultation process. The Committee also notes that similar criminal acts continued to occur throughout 2001, in particular the abduction and disappearance on 2 June 2001 of the traditional leader Kimy Domicó Pernía. (Endnote 10)
63. With regard to the consultation process in respect of the Embera Katío people, the Committee also wishes to express its concern at the actions taken by the Government and the Urrá enterprise intended, if not to create internal conflicts and discord, to encourage them amongst the Embera Katío people. In this connection, the Committee notes the statement by the Constitutional Court, in Judgement No. T-652 of 10 November 1998, observing that the Embera Katío community of Alto Sinú is a single indigenous people and that the establishment of two adjoining reserves instead of one in fact made it more difficult to solve the internal conflicts. Moreover, the Committee understands that during the consultation process convened according to the order of the Constitutional Court in Judgement No. T-652, the government authorities and the Urrá enterprise established separate consultations and negotiations for various groups of the Embera Katío people of Alto Sinú and different agreements were signed. While the Committee is fully aware that in some cases it might be difficult to determine who are the legitimate representatives of an indigenous people, in this case it considers that it would have been appropriate to comply with the spirit of the order of the Constitutional Court on the matter of consultation and to support a single consultation process with all the legitimate authorities of the Embera Katío people of Alto Sinú, as well as the establishment of a single agreement, as far as possible, with a view to preserving the ethnic integrity of the people.
64. Concerning the relocation of the indigenous families located in the zone flooded by the dam, the Committee observes that Article 16(5) of the Convention provides that: "Persons thus relocated shall be fully compensated for any resulting loss or injury."
65. The Committee observes that the Constitutional Court, in Judgement No. T-652, ordered that the Urrá enterprise should compensate the Embera Katío people of Alto Sinú for the damage caused by the construction and operation of the dam. The Court ordered that, if the Embera Katío people and the Urrá enterprise did not reach an agreement by the deadline specified in the ruling, the people should begin legal proceedings before the High Court of the Judicial District of Córdoba - to fix the sum corresponding to a food and transport subsidy, which the enterprise that owns the project will pay to each of the members of the indigenous people for the next fifteen (15) years, in order to ensure the physical survival of this people, while it adapts its customs and practices to the cultural, economic and political changes brought about by the construction of the hydroelectric dam without the Embera people having been consulted, and while they can educate the next generation to ensure that this culture will not disappear in the medium term.
66. The Committee is aware that an action to fix the amount of damages was submitted and denied, but that the Constitutional Court again ordered the Court to allow the request. The Committee has found out that the case reached the Supreme Court of Justice and that the Labour Division of the Supreme Court of Justice issued a decision on 16 May 2001 in which it refrained from pronouncing a decision on the case. The Committee understands that on 24 October 2001, the Upper Council of the Judiciary ordered the Labour Division of the Supreme Court of Justice to comply with the judgement of the Constitutional Court and to pay the compensation owed to the Embera Katío people for damages caused by the Urrá hydroelectric dam. (Endnote 11)
67. The Committee observes that the agreements signed by the government authorities, the Urrá enterprise and the Embera Katío people grant additional land to the Embera Katío people and make provision for other compensatory measures. However, the Committee observes that, as indicated in the ruling by the Constitutional Court in its Judgement No. T-652, the creation of a dam implies a sudden change from a terrestrial to an aquatic ecosystem and can affect the climate of the region, increase seismic activity, raise the incidence of certain illnesses, cause the disappearance of aquatic species or the establishment of new ones and even change the entire social and economic structure of a region. The Committee does not intend to comment on the usefulness of the project in itself, but on the impact that it has had on the indigenous peoples concerned. In this connection, the Committee calls the Government's attention to Article 19, which establishes that:
National agrarian programmes shall secure to the peoples concerned treatment equivalent to that accorded to other sectors of the population with regard to:
(a) the provision of more land for these peoples when they have not the area necessary for providing the essentials of a normal existence, or for any possible increase in their numbers;
(b) the provision of the means required to promote the development of the lands which these peoples already possess.
IV. The Committee's recommendations
68. The Committee recommends that the Governing Body approve the present report and that in the light of the conclusions in paragraphs 54 to 67:
(a) it request the Government to amend Decree No. 1320 of 1998 to bring it into line with the spirit of 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;
(b) it suggest to the Government that when seeking solutions to the problems that still affect the Embera Katío people as a result of the filling and operation of the dam, it should continue to include the representatives of the entire community concerned so as to maintain a dialogue characterized by cooperation and mutual respect, which allows both parties to seek solutions to the situation affecting this people;
(c) it request the Government to continue informing the Committee of Experts on the Application of Conventions and Recommendations, by way of the reports it is required to submit under article 22 of the Constitution of the ILO in relation to this Convention, of developments in respect of the issues on which the representation is based, and in particular on:
(i) any measure taken to comply with the agreements signed by the government authorities, the Urrá enterprise and the Embera Katío people, including the agreement signed on 19 April 2000;
(ii) all the measures taken or which might be taken to safeguard the cultural, social, economic and political integrity of the Embera Katío people and to prevent acts of intimidation or violence against the members of that people;
(iii) any measure taken to compensate the members of the Embera Katío people in compliance with Judgement No. T-652 issued by the Constitutional Court;
(iv) information relating to developments in the investigations into alleged assassinations, abductions and threats suffered by spokespersons for the community, including Alonso Domicó Jarupia, Alirio Pedro Domicó, Lucindo Domicó Cabrera and Kimy Domicó Pernía;
(d) it declare closed the procedure initiated before the Governing Body as a result of the submission of the representation.
Geneva, 14 November 2001.
(Signed) Felipe Ernst(Government member, Chile)
Jorge de Regil Gómez (Employer member, Mexico)
Federico Ramírez León (Worker member, Venezuela)
Endnote 1
See Judgement No. T-652/98 issued by the Constitutional Court of Colombia.
Endnote 2
In 1997, the Urrá Multipurpose Enterprise Ltd. changed its trade name to Urrá Ltd.
Endnote 3
Judgement No. T-652 issued by the Constitutional Court.
Endnote 4
idem.
Endnote 5
idem.
Endnote 6
A more detailed analysis of the compatibility of Decree. No. 1320 with the provisions of the Convention can be found in the report relating to another representation against the Government of Colombia which is being examined at this same session of the Governing Body (doc. GB.282/14/3).
Endnote 7
Alonso Domicó Jarupia.
Endnote 8
See Judgement No. T-652 issued by the Constitutional Court.
Endnote 9
See, Report of the Committee on Convention No. 107, Record of Proceedings, International Labour Conference, 76th Session, Geneva, 1989, para. 74, p. 25/12.
Endnote 10
At the time of the representation, it is alleged that "since the Constitutional Court judgement the following persons have been assassinated, all at the hands of paramilitaries from the zone: Alonso Domicó Jarupia (a spiritual leader of the Embera Katío people), Alejandro Domicó, Lucindo Domicó Cabrera (described by the CUT and the ASMEDAS as the principal negotiator for the consultations) and Rubén Dario Mosquera Pernía". 11 The Committee knows of the judicial decisions referred to although the parties have not provided it with copies of them.