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

Other comments on C169

Observation

Direct Request

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Previous comments: observation and direct request

Article 6 of the Convention. Consultation. Regulatory framework. The Committee notes the Government’s reference in its report to the Act on the electoral system (Act No. 26) of 30 June 2010. The Act provides that the exercise of political rights within the framework of intercultural democracy includes the right of indigenous people to prior consultation (section 4). Section 39 recognizes prior consultation as a mechanism of direct and participatory democracy in relation to the implementation of projects, works or activities in relation to the exploitation of natural resources. In the case of the participation of indigenous peoples, consultation shall take place respecting their own standards and procedures. The Act also provides that the Plurinational Electoral Body, through the Intercultural Service for the Strengthening of Democracy (SIFDE), shall observe and support processes of prior consultation in coordination with the organizations and institutions involved (section 40). The conclusions, agreements or decisions adopted in the context of prior consultation are not binding, but shall be taken into consideration by the authorities and representatives at the corresponding decision-making levels (section 39). The results of the consultation shall be communicated and disseminated through an accompanying report prepared by the SIFDE (section 41).

While noting that the Act on the electoral system provides for a general procedure for consultation, the Committee once again observes that the Government has not provided information on progress in the process of adopting legislation on the prior consultation of indigenous peoples, in relation to which the Committee noted previously that a process of dialogue had been undertaken with indigenous and Afro-Bolivian organizations.

The Committee recalls the importance of establishing a regulatory framework for consultation with the peoples covered by the Convention as a priority, and of carrying out prior consultations with indigenous peoples for the development of such a mechanism (see general observation, 2018). In these circumstances, the Committee requests the Government to take the necessary measures for the adoption of a regulatory framework for prior consultation, in consultation with the peoples covered by the Convention. In the meantime, it requests the Government to provide examples of consultation processes that have been accompanied and monitored by the Intercultural Service for the Strengthening of Democracy of the Plurinational Electoral Body, and on the results of these processes.

Articles 6, 15(2) and 16. Consultation. Construction of a highway in the Isíboro Sécure Indigenous Territory and National Park (TIPNIS). For several years, the Committee has been referring to the project to construct a highway affecting the TIPNIS and, in this regard, has requested the Government to provide information on the consultations held with the indigenous peoples affected by the project. In its previous comment, it noted Act No. 969 of 13 August 2017 on the protection and sustainable and comprehensive development of the Isíboro Sécure Indigenous Territory and National Park (TIPNIS), under the terms of which activities related to the construction of highways in the TIPNIS which seek to improve or maintain the rights of indigenous peoples to freedom of movement shall be designed in a participatory manner with the indigenous peoples (section 9).

The Committee notes the Government’s indication that in 2022 the authorities in Beni collected proposals for the construction of a road to connect Beni and Cochabamba, as a result of which the idea was developed of the construction of a route passing directly through the TIPNIS. The first of the three branches of the route (Tramo I Villa Tunari – Isinuta), which is the responsibility of the Cochabamba region, is at an advanced stage and has reached the Monte Grande del Apere community, near San Ignacio de Moxos. In this regard, the Committee observes that the Government has not provided information on the consultations carried out with the indigenous peoples affected by this road project.

The Committee requests the Government to take the necessary measures to ensure that the indigenous peoples whose lands have been or may be affected by the construction of the Beni-Cochabamba road or any other construction that goes through the TIPNIS are consulted in accordance with the provisions of the Convention. In this regard, it requests the Government to indicate whether, as a consequence of this road project, indigenous communities have been transferred from their lands and, if so, to provide information on the procedures established to obtain the consent of those communities to such a transfer.

Article 14. Land. For several years, the Committee has been requesting the Government to provide information on progress in the processes of issuing titles and registering lands for the peoples covered by the Convention. The Committee notes with concern the continuing absence of information on this subject. The Committee therefore requests the Government to take the necessary measures to ensure that the peoples covered by the Convention are able to rely on titles to the lands that they traditionally occupy. It requests the Government to provide information on the progress achieved in this regard, and on the surface area of the lands that have been registered for the peoples covered by the Convention, with an indication of the number of communities or peoples who have benefited and their location. It further requests the Government to provide information on the bodies responsible for resolving issues relating to the lands of indigenous peoples and for following up the respective adjudication processes.

Article 15(2). Consultation in relation to mining activities. The Committee notes with concern that the Government has not provided information on the measures adopted for the revision of section 207 of the Act on minerals and metallurgy (No. 535) of 2014, which exempts mining prospection and exploration operations from the requirement of consultation, as well as administrative mining contracts for the rehabilitation of sites and lease and shared risk contracts, as pre-established rights.

The Committee also notes the special report of 2021 of the Ombudsperson on the violation of rights through mining activities in the Leco “Santa Rosa” indigenous community of the municipality of Guanay in the Department of La Paz. The report refers to the complaint lodged in July 2020 by members of the Leco Santa Rosa indigenous community of the municipality of Guanay concerning gold-mining activities reportedly undertaken in their lands in violation of their collective rights. According to the report, mining activities have been carried out by a private enterprise without having engaged in the respective prior consultations on the grounds that the enterprise held pre-established mining rights and that, in accordance with section 207 of Act No. 535 prior consultation is not applicable in cases of the adjustment of mining rights. In a press release dated 9 February 2022, the Ombudsperson indicated that he had verified that the mining activities carried out in the municipality of Guanay are in violation of various rights of the Leco Santa Rosa indigenous community and that there are no guarantees of consultations being held in practice in pre-established mining areas.

In this regard, the Committee recalls that Article 15(2) of the Convention establishes the requirement to consult indigenous peoples before undertaking or permitting any programmes for the exploration or exploitation of natural resources pertaining to their lands. The Committee observes that, even in situations in which mining rights are pre-established, whether or not they are prior to the Convention, prior consultation must occur on each occasion that a new activity is envisaged for the exploration or exploitation of subsoil resources in lands traditionally occupied by the peoples covered by the Convention for the purpose of determining whether the interests of the indigenous peoples would be prejudiced and the extent of such prejudice. The Committee therefore urges the Government to take the necessary measures without delay to amend section 207 of the Act on mining and metallurgy so that: (i) mining exploration or exploitation projects in lands traditionally occupied by indigenous peoples are not exempt from the requirement of prior consultation; and (ii) in cases of pre-established mining rights in such lands, prior consultations are held on every occasion that new exploration or exploitation activities of resources are planned which may affect the rights of the peoples covered by the Convention.

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