REPRESENTATION (article 24) - ECUADOR - C169 - 2001

Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Confederación Ecuatoriana de Organizaciones Sindicales Libres (CEOSL)

Decision

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

Complaint Procedure

1. Representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL)
2. I. Introduction
3. 1. In a communication dated 14 December 1999, received by the Office on 4 January 2000, the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL) made a representation to the International Labour Office under article 24 of the Constitution of the International Labour Organization alleging that the Government of Ecuador has not adopted satisfactory measures for the observance of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).
4. 2. Ecuador ratified Convention No. 169 on 15 May 1998 and it has been in force in the country since 15 May 1999.
5. 3. The provisions of the Constitution of the International Labour Organization concerning the submission of representations are as follows:
6. Article 24
7. 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.
8. Article 25
9. 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.
10. 4. The procedure followed for representations is governed by the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the ILO Constitution, as revised by the Governing Body at its 212th Session (March 1980).
11. 5. In accordance with articles 1 and 2, paragraph 1, of the Standing Orders, the Director- General acknowledged receipt of the representation, informed the Government of Ecuador of the representation by letter dated 27 January 2000 and brought the representation before the Officers of the Governing Body.
12. 6. At its 277th Session (March 2000) the Governing Body, on the recommendation of its Officers, concluded that the representation was receivable and set up a tripartite committee to examine it, composed of Mr. Felipe Ernst Edwards (Government member, Chile), Mr. Jorge A. De Regil (Employer member, Mexico), and Mr. J. Olivio Miranda Oliveira (Worker member, Brazil).
13. 7. In accordance with the provisions contained in clauses (a) and (b) 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 organization to furnish all further information that it wishes to make known to the Committee.
14. 8. The Government sent its official reply to the representation on 25 August 2000.
15. II. Examination of the representation
16. A. Allegations by the complainant organization
17. 9. The CEOSL alleges that the Government of Ecuador has not complied with the Indigenous and Tribal Peoples Convention, 1989 (No. 169). More specifically, it alleges that the Government of Ecuador has failed to comply with articles 2, 4(1), 5, 7, 13(1), 14(1), 15(2) and 17 of the Convention. The representation is based on the following facts.
18. 10. The CEOSL indicates that on 27 April 1998, the Government signed a share agreement with the company Arco Oriente, Inc. ("Arco") for the exploitation of hydrocarbons on Block 24, a block where 70 per cent of the territory of the Independent Federation of the Shuar People of Ecuador (FIPSE) is situated. It is alleged that, although oil is a resource to which the Government has inalienable property rights and the oil company acted in the name of the Government, the members of the FIPSE were not informed that an agreement for the mining of hydrocarbons in the territory's subsurface had been signed nor were they at any time consulted in this regard.
19. 11. The complainant organization indicates that the FIPSE is an indigenous Shuar organization governed by private law which comes under the provisions of the Civil Code of Ecuador and has been approved by Ministerial Agreement No. 2884-A of 27 February 1996. The FIPSE is made up of ten associations, each of which comprises between three and 11 centres. In each centre there are about 20 families. The FIPSE represents approximately 5,000 people and the territory belonging to its members covers about 150,000 hectares. The complainant organization also states that the FIPSE was recognized by the Government of Ecuador in a ministerial decision issued in 1996.
20. 12. The CEOSL also indicates that in October 1999 the Government authorized the sale of contractual obligations between the companies Arco and Berlington Resources Ecuador Limited ("Berlington Ecuador") regarding oil mining activities on the Shuar people's territory. It is alleged that in this procedure the Government once again did not fulfil its obligations to inform or consult the peoples concerned.
21. 13. The complainant organization communicates that on 13 August 1998 an extraordinary assembly of the FIPSE, "in view of the negative experiences witnessed in oil mining activities in the north of the country", decided "not to allow any negotiations between individual members or any of its centres and associations and the Arco company" and declared that "any attempt by the company in this regard would be considered as a violation of the integrity of the Shuar people and its organizations and as an open infringement of our rights as recognized in the Constitution (of Ecuador) and in Convention No. 169 of the ILO". The CEOSL alleges that this public declaration by the FIPSE was not respected by the Government of Ecuador.
22. 14. The CEOSL indicates that on 24 August 1999, the FIPSE lodged an appeal for the protection of its constitutional rights against Arco to put an end to certain of its actions which allegedly violated provisions of national legislation, as well as of Convention No. 169. On 8 September 1999, the Court of First Instance ruled partially in favour of the FIPSE, ordering Arco not to approach individuals or grass-roots organizations of the FIPSE without its authorization and prohibiting Arco from approaching or meeting any individual, centre or association belonging to the FIPSE for the purpose of dialogue, without the latter's authorization. Arco subsequently appealed the ruling before the Constitutional Court of Ecuador.
23. 15. It is alleged that the actions undertaken by Arco, partner to the Government of Ecuador in the mining agreement, violate a number of provisions of the Constitution of Ecuador and of Convention No. 169. Among these violations, it is alleged that Arco tried to divide the local organizations and created fictitious committees to coordinate their activities and to denigrate indigenous organizations in the eyes of the public. It is also alleged that, owing to successive entries by Arco into Shuar territory without the people's permission, the Shuar were prevented from fully exercising their rights of possession over their ancestral territory, in violation of Articles 13(1) and 14(1) of Convention No. 169.
24. 16. The CEOSL indicates that the Government violated Articles 5 and 8(2) of Convention No. 169 by signing a document agreed between Arco officials and some FIPSE members supposedly approving exploration and exploitation activities on Shuar territory following the public declaration by the FIPSE assembly.
25. 17. The CEOSL alleges that the Government prevented the Shuar people from fully enjoying the guarantees provided for in Article 7 of Convention No. 169 by allowing contacts between employees of Arco and individual members of FIPSE associations without proper consideration of the matter by the FIPSE assembly in accordance with its traditions.
26. 18. The complainants also allege that the Government has failed to comply with Articles 2, 4(1), 5, 15 and 17 of the Convention.
27. B. The Government's observations
28. 19. The Government indicates that on 27 April 1998 the State of Ecuador, through the intermediary of Petroecuador, signed with the company Arco a share agreement for the exploration of hydrocarbons and the exploitation of crude oil on Block 24 of the Amazon region according to the cadastral map of Ecuador relating to oil resources.
29. 20. The Government states that on 17 April 2000, Arco signed a transfer agreement by way of which it transferred all its contractual rights and obligations vis-à-vis Block 24 to the company Berlington Ecuador. Through the transfer agreement and the authorization granted by the Ministry of Energy and Mines, Berlington Ecuador acquired the status of contractor and operator of Block 24 and, according to the Government, it currently has a contractual relationship with the Government to continue to execute the abovementioned share agreement.
30. 21. The Government indicates that Act No. 44 published in Official Register No. 326 of 29 November 1993, which amends the Hydrocarbons Act, incorporates the category of share agreement whereby the Government gives individual contractors authority to carry out activities relating to the exploration of hydrocarbons and the exploitation of crude oil.
31. 22. The contractual activities on Block 24 began on 27 May 1998 and were taken over by Berlington Ecuador as from 9 May 2000. The Government indicates that authorization was given for an environmental impact study to be conducted prior to the exploration by way of Agreements Nos. 197, 041 and 042 of 9 April 1999 and of 6 and 10 April 2000, respectively. However, the Government indicates that at the time of writing 25 August 2000 the activities corresponding to the conclusion of the study had been suspended. The first agreement was suspended for a year and the others extended the period of the suspension for an additional six months. The Government indicates that the suspension was due to the fact that there was and still continues to be opposition by the indigenous organizations of the zone in question.
32. 23. In reply to the statement by the CEOSL that the FIPSE was not informed of the authorization for exploration and exploitation activities, the Government declares that the consultations required under Convention No. 169 were not applicable to the bidding process for the Eighth Oil Round which was held on 26 June 1995, nor to the share agreement that was signed on 27 April 1998, because the Convention was only ratified by Ecuador on 15 May 1998. Therefore, the Government states that the provisions of the Convention were not applicable to the events referred to due to the principle of the non- retroactivity of the law.
33. 24. The Government notes that it is concerned with safeguarding the rights of the indigenous peoples located in the zone of Block 24 and says that the Hydrocarbons Act, the share agreement and Chapter 5 of the Constitution of Ecuador reflect this concern. The Government also indicates that economic contributions and other benefits have been established to compensate for any damages caused to the environment by the oil companies which hold contracts with Petroecuador. However, the Government indicates that it does not find the consultation mechanisms appropriate because they would tend to hinder the oil-related consultation processes which are the responsibility of the government institutions. Likewise, the Government notes that the mining of products from the subsurface (including hydrocarbons), unlike that of surface products, is the domain of the Government.
34. 25. The Government puts forward its view that projects for the exploration and exploitation of hydrocarbons are motors of economic growth and therefore serve the interests of national development. It notes its concern at the fact that the Amazon region of the country contains both the highest indigenous population and the greatest hydrocarbon potential, a resource that is a part of the State patrimony.
35. 26. The Government indicates that the cooperation agreements signed between Arco and three of the FIPSE's associations remained null and void because other associations belonging to the FIPSE rejected them. It notes that another cooperation agreement signed between Arco and the Association of Evangelical Indigenous Peoples of Pastaza (AIEPRA) was complied with in full. It also points out that the Constitutional Court of Ecuador, in Decision No. 054-2000-TP, rejected the appeal for the protection of their constitutional rights lodged by the Mayors of the cantons of Limón Indanza and Palora and the President of the Consortium of Municipalities of Morona Santiago and Deputy of the same province. (Endnote 1)
36. 27. The Government also notes its concern as to the legitimacy of the representation of the CEOSL in the complaint.
37. III. The Committee's conclusions
38. 28. The Committee notes the information and appendices submitted in this case by both the complainant organization and the Government. It also notes the Government's statement that the provisions of the Convention are not applicable to events that occurred before it came into force in Ecuador. The Committee affirms that the provisions of the Convention cannot be applied retroactively, particularly as regards questions of procedure, including the types of consultations that would have been necessary at the time of taking the decision to sign the share agreement between Arco and the Government on 27 April 1998. (Endnote 2)It adds, nevertheless, that in its view some of the facts outlined in the complaint concern activities that have taken place since the Convention came into force in Ecuador on 15 May 1999. The Committee considers that the Convention is currently applicable to all activities that have occurred since 15 May 1999.
39. 29. As regards the legitimacy of the representation by the CEOSL, the Committee observes that it is an organization of workers that is duly recognized as such. As a result, in accordance with the provisions of article 24 of the Constitution of the ILO, the CEOSL has the capacity to file a complaint for non-observance by a member State of the ILO of a Convention ratified by that country. The Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the ILO Constitution do not require the complainant organization to have a direct connection with the events that constitute the basis of the complaint.
40. 30. The CEOSL alleges that the FIPSE was not informed and that there were no consultations prior to the signature of the share agreement between the Government and Arco. As indicated in paragraph 28, at the time of taking the decision to sign the share agreement between the company Arco (which was succeeded by Burlington Ecuador) and the Government, on 27 April 1998, Convention No. 169 had not yet been ratified and therefore its provisions cannot be applied retroactively. However, the Committee observes that the situation created by the signature of that agreement still prevails. In addition, the obligation to consult the peoples concerned does not only apply to the concluding of agreements but also arises on a general level in connection with the application of the provisions of the Convention (see Article 6 of Convention No. 169).
41. 31. In this context, the Committee notes the Government's more general statement that it does not find the consultation mechanisms appropriate in the framework of oil-related consultation processes. The Committee considers that the spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all its provisions are based. Article 6(1) establishes the obligation for the States that ratify the Convention to consult the indigenous peoples on their territory. The paragraph provides that:
42. 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;
43. (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;
44. (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.
45. 32. The requirement of consultation should be considered in the light of the fundamental principle of participation, set forth in Article 7(1) and (3), which establish that:
46. 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.
47. (... )
48. 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.
49. 33. The Committee also considers that the principles of consultation and participation established in Articles 6 and 7 should be understood in the context of the general policy set forth in Article 2(1) and (2)(b) of the Convention, which provide that:
50. 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.
51. 2. Such action shall include measures for:
52. (...)(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.
53. 34. The Government states that it does not consider it appropriate to enter into consultations as part of the process for the granting of share agreements for activities involving oil exploration and exploitation, and also indicates that the rights to subsurface products are part of the State patrimony. In this respect, the Committee brings to the attention of the Government Article 15(1) of the Convention which establishes as follows:
54. 1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
55. 35. The Committee observes that national legislation in many countries, including Ecuador, establishes that the rights to subsurface resources are part of State patrimony. Article 15(2) of the Convention recognizes this legal principle and also establishes an obligation to administer those resources: the obligation of the State to consult the indigenous and tribal peoples which could be affected prior to authorizing activities for the exploration and exploitation of the subsurface resources situated on indigenous territories:
56. 2. In cases in which the State retains the ownership of mineral or subsurface 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. (...)
57. 36. The Committee wishes to stress that it is fully aware of the difficulties entailed in the settlement of disputes relating to land rights, including the rights relating to the exploration and exploitation of subsurface products, particularly when differing interests and points of view are at stake such as the economic and development interests represented by the hydrocarbon deposits and the cultural, spiritual, social and economic interests of the indigenous peoples situated in the zones where those deposits are situated. However, the spirit of consultation and participation that constitutes the essence of Convention No. 169 requires that the parties involved seek to establish a dialogue allowing them to find appropriate solutions in an atmosphere of mutual respect and full participation.
58. 37. With regard to the actual consultation process, the Committee wishes to underline the provisions of Article 6(2) of the Convention:
59. 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.
60. 38. The Committee considers that the concept of consulting the indigenous communities that could be affected by the exploration or exploitation of natural resources includes establishing a genuine dialogue between both parties characterized by communication and understanding, mutual respect, good faith and the sincere wish to reach a common accord. A simple information meeting cannot be considered as complying with the provisions of the Convention. In addition, Article 6 requires that the consultation should occur beforehand, which implies that the communities affected should participate as early as possible in the process, including in the preparation of environmental impact studies. Although in this case the project was established before the Convention came into force in Ecuador, when it did come into force so did the obligation to carry out consultations in respect of any activity affecting the application of the Convention.
61. 39. 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 3) In the Committee's view, while Article 6 does not require consensus to have been reached in the process of prior consultation, it does stipulate that the peoples involved should have the opportunity to participate freely at all levels in the formulation, implementation and evaluation of measures and programmes that affect them directly, as from the date on which the Convention comes into force in the country. In addition, Articles 2(1), 2(2)(b), 6, 7 and 15(2) imply the obligation to develop a process of prior consultation with the indigenous peoples of the country before taking measures that might affect them directly, such as the signature of an agreement authorizing activities relating to the exploration or exploitation of hydrocarbons on their ancestral territory, or the continuation of activities initiated prior to the entry into force of the Convention. The obligation of prior consultation implies that the peoples concerned should be consulted before finalizing the environmental study and the environmental management plan. It is provided that the Government shall "establish or maintain procedures through which" it "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".
62. 40. Given the continuation of the activities authorized under the share agreement, the Committee considers that the Government had the obligation to consult the indigenous communities situated in the zone of Block 24 as from the entry into force of the Convention, particularly by reason of Article 7(1) and (2) of the Convention, in order to allow the community to participate in its own economic, social and cultural development. In this respect, the Committee notes that the Government does not deny that to date the consultations set forth in Articles 2(1), 2(2)(b), 6, 7 and 15(2) of the Convention have not yet been carried out and that despite this fact at the time of the Government's communication, the environmental impact study had not yet been completed and the exploration and exploitation activities had not yet started. The Committee urges the Government to begin a consultation process with the affected communities, including the FIPSE, so that the parties can collaborate to find appropriate solutions.
63. 41. The Government does not deny that, despite the decision made on 13 August 1998 by the FIPSE, meeting in an extraordinary assembly, "not to allow any negotiation between any individual members or any of its centres and associations and the Arco company" and also its view that "any attempt by the company in this regard would be considered as a violation of the integrity of the Shuar people and its organizations and as an open infringement of our rights recognized in the Constitution (of Ecuador) and in Convention No. 169 of the ILO", the company held meetings and signed "cooperation agreements" with individuals and grass-roots organizations of the FIPSE without its authorization. The CEOSL alleges that the actions undertaken by the company violated, inter alia, Article 17 of the Convention.
64. 42. Article 17(3) provides that: Persons not belonging to these peoples shall be prevented from taking advantage of their customs or of lack of understanding of the laws on the part of their members to secure the ownership, possession or use of land belonging to them.
65. 43. Likewise, the Committee wishes to emphasize that by establishing the obligation of consultation, Article 6(1) makes it clear that the peoples concerned should be consulted "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".
66. 44. The Committee is of the opinion that the principle of representativity is a vital component of the obligation of consultation. The Committee is aware that it could be difficult in many circumstances to determine who represents any given community. However, 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. In this case, the Committee considers that not only was the appropriate consultation not carried out with an indigenous organization clearly representative of the peoples concerned in the activities of Arco on Block 24 the FIPSE but that the consultations that were carried out excluded it, despite the public statement issued by the FIPSE in which it determined "not to allow any negotiation between individual members or any of its centres and associations and the Arco company". In this context, the Committee recalls that Article 6(1)(c) stipulates that governments shall "establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose". This being the case, the Committee considers that any consultation carried out in future in respect of Block 24 should take into account the abovementioned statement by the FIPSE.
67. IV. The Committee's recommendations
68. 45. In adopting this report, the Committee is aware that the application of the Convention is a matter of importance for the Government, which has taken legislative measures to safeguard the interests of the indigenous and tribal peoples on its territory. The Committee hopes that the Government will continue to maintain close contact with the Committee of Experts on the Application of Conventions and Recommendations and the Office to resolve any difficulties that might arise in this respect. The Committee recommends that the Governing Body approve the present report and that in the light of the conclusions in paragraphs 28 to 44:
69. (a) it request the Government to apply fully Article 15 of the Convention, to establish prior consultations in the cases of exploration and exploitation of hydrocarbons that could affect indigenous and tribal communities and to ensure the participation of the peoples concerned in the various stages of the process, as well as in environmental impact studies and environmental management plans;
70. (b) it urge the Government, in seeking solutions to the problems that still affect the Shuar people as a result of the oil exploration and exploitation activities in the zone of Block 24, to contact the representative institutions or organizations, including the FIPSE, for the purpose of establishing and maintaining a constructive dialogue which will allow the parties concerned to find solutions to the situation facing this people;
71. (c) it request the Government to inform the Committee of Experts in detail, 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 by the CEOSL is based, and in particular on:
72. (1) The measures taken or envisaged to remedy the situations that gave rise to the complaint, taking into account the need to establish an effective mechanism for prior consultation with the indigenous and tribal peoples as provided in Articles 6 and 15, before undertaking or authorizing any programme for the prospecting or exploitation of the resources that exist on their lands;
73. (2) The measures taken or envisaged to ensure that the required consultations are carried out in compliance with the provisions of Article 6, particularly as regards the representativity of the indigenous institutions or organizations consulted;
74. (3) The progress achieved in respect of consultations with the peoples situated in the zone of Block 24, including information on the participation of these peoples in the use, administration and conservation of said resources and in the profits from the oil- producing activities, as well as their perception of fair compensation for any damage caused by the exploration and exploitation of the zone; and
75. (d) it declare closed the procedure initiated before the Governing Body as a result of the submission of the representation.
76. Geneva, 14 November 2001. (Signed)
77. Felipe Ernst Edwards (Government member, Chile), Jorge A. de Regil (Employer member, Mexico), J. Olivio Miranda Oliveira (Worker member, Brazil)
78. Endnote 1
79. The Committee observes that the purpose of the appeal for the protection of constitutional rights was, inter alia, to obtain the suspension of the activities of exploration, prospecting for hydrocarbons and oil mining on Block 24. It also notes that, while the Constitutional Court rejected the appeal for the protection of constitutional rights, at the same time it urged "that the State of Ecuador and in particular Petroecuador, when concluding new contracts, should expressly comply with the constitutional provisions that guarantee and protect the fundamental rights of individuals and communities".
80. Endnote 2
81. Arco transferred its contractual rights and obligations to the company Burlington Ecuador by way of a transfer agreement signed on 17 Apr. 2000.
82. Endnote 3
83. Report of the Committee on Convention No. 107, Record of Proceedings of the 76th Session of the International Labour Conference (Geneva, 1989), para. 74, p. 25/12.