Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

In its observation of 2007, the Committee noted a communication from the Workers’ Trade Union Confederation for the Oil Industry (USO), received on 31 August 2007, following up on a situation under consideration by the Committee pertaining to the application of the Convention to the Afro-decendent communities of Curvaradó and Jiguamandó in the Pacific coastal area. The abovementioned communication was prepared in conjunction with the Curvaradó and Jiguamandó community councils, the Interdenominational Justice and Peace Commission, the Colombian Commission of Jurists and the José Alvear Restrepo Lawyers Collective. On 28 August 2008, the Office received a further communication from the USO, forwarded to the Government on 9 September 2008. The Committee notes that a reply has not yet been received. The Committee notes with regret that the Government makes no comment on the serious issues raised by the Committee in its observation of 2007, or on the USO’s communication of 2007.

Observation of 2007: Jiguamandó and Curvaradó

In its observation of 2007, of the matters raised by the USO, the Committee examined only those which it deemed to be serious and urgent and which could have irreversible consequences, and sought the Government’s views before examining the communication as a whole. The Committee expressed deep concern at the allegations of threats and violations of the right to life and the personal integrity of the communities’ inhabitants. It referred in particular to the following allegations contained in the communication: (1) the presence of paramilitary groups in the community territory, including those known as “Aguilas negras” and “Convivir” and the assertion that they are tolerated by the official forces, especially army brigades XV and XVII. According to the USO, the paramilitary forces established themselves in community lands in 2007 and have made threats against the inhabitants of the communities, accusing them of belonging to the guerrilla forces which, given the situation in the country, places their lives at grave risk. The communication also indicates that intimidation of this kind is a result of the cultivation of the African palm and that anyone obstructing the production of palm oil in Curvaradó and Jiguamandó would be “cleaned up”; (2) impunity for violations of the fundamental rights of members of the communities such as the disappearance and murder in 2005 of Orlando Valencia, an Afro-Colombian Jiguamandó leader; (3) the “judicial persecution” of the victims of violations of human rights and members of supporting organizations. The USO further indicates that although guerrilla presence in the region is sporadic, it must be remembered that the communities are civilian populations and that they have decided to establish humanitarian zones, which have been recognized by the Inter-American Court of Human Rights. In 2007, the Committee urged the Government to take specific measures and provide information. The Committee again expresses deep and growing concern at the USO’s allegations and at the lack of a response on the Government’s part to the allegations concerning the right to life of the indigenous peoples. It again urges the Government to take without delay all necessary steps to guarantee the life and physical and moral integrity of the members of the communities, to put an end to all persecution, threats or intimidation and to ensure implementation of the rights laid down in the Convention in a climate of security. It again asks the Government to provide information on the measures taken on these matters and to reply to the comments the Committee made in its last observation. In commenting on the USO’s communication of 2007, the Government is asked to provide detailed information on the manner in which the provisions of Article 14 of the Convention are applied with respect to the lands of the Jiguamandó and Curvaradó communities.

Communication of 2008 from the USO

In its communication, the USO alleges that the Government is in breach of the provisions of the Convention in its treatment of the Emberá Katío y Dobida peoples, who live on the Pescadito and Chidima reservations in the municipality of Acandi and belong to the association of Kuna, Emberá and Katío Indigenous Councils of North Chocó (ACIKEK). The USO asserts that the Emberá people belong to a large indigenous family known as the Chocó and lists the areas in which they live. The Emberá people include the Katío and Dobida families. The Emberá Dobida live on riverbanks and their main activity is fishing. The Emberá Katío live in wooded mountain areas.

Murder and forced displacement of indigenous people. The USO refers in particular to acts of violence ranging from death threats to murder and including forced displacement, violation of the right to land, failure to consult, prospecting for natural resources without consultation or participation. The USO refers in general to an increase in the forced displacement of indigenous peoples and cites documents of the United Nations High Commissioner for Refugees reporting that between 1996 and 2002, 997 indigenous persons were murdered and 16,362 forcibly displaced, and that between 2004–07, 519 were murdered and 30,000 forcibly displaced. Regarding the Pescadito and Chidima reservations, it refers specifically to instances of displacements and of indigenous people who attempted to enter Panama, where there are inhabitants belonging to the same people. Some were unsuccessful, while others obtained refugee status.

Lands. Chidima and Pescadito reservations. The USO states that in 2001, the Colombian Institute for Agrarian Reform (INCORA) issued resolutions Nos 005 and 006 establishing the indigenous reservations known as Chidima, for the Katío indigenous people, and Pescadito for the Dobida. The USO reports that “reservations” have been set up for the Dobida that are so small that, according to indigenous witnesses, “it’s like being in jail”. Furthermore, the Chidima reservation consists of three separate plots that are non-adjacent, so that it is easy for settlers to invade the third one. The USO reports that settlers arrived with dredgers and power saws, burned the grass and issued death threats. The Katío, claiming that they have traditionally occupied the entire territory including the areas between the plots, have asked that the three plots be combined in a single reservation, and although the Government at first undertook to do this, subsequently nothing was done. The USO attaches a letter from the Colombian Institute of Rural Development (INCODER), stating that “there is no budget for regularization for 2006”. The USO reports that when the indigenous people sought protection against such invasion, INCODER replied that once a title has been issued for the reservation, it would be up to the indigenous communities to prevent the territory from being invaded. The Committee reminds the Government that according to Article 14(2), it has a duty to ensure effective protection of the rights of ownership and possession of the indigenous people and that pursuant to Article 18, it must take measures to prevent unauthorized intrusion upon, or use of, the lands of the peoples concerned. Consequently, the Committee urges the Government to take steps as a matter of urgency to put an end to all intrusion upon the lands of the Katío and Dobida peoples, particularly plot 3 of the Chidima reservation, where, according to the USO, there is currently intrusion, and to provide information on the measures taken in this regard. It also asks the Government to take measures to join the three plots into one, in so as far as there has been traditional occupation of the land concerned, in order to make the reservation viable, and to provide information on the measures taken in this regard.

Natural resources and development projects. The USO refers to the construction of new roads that cross the Chidima and Pescadito reservations; to a bi-national electricity interconnection, on which field studies are being carried out; and to a mining concession in the municipality of Acandí covering an area of 40,000 hectares. For none of these projects has there been participation and consultation. The USO also states that according to the Government, decree No. 1320 on consultation requires prior consultation only for exploitation, and allows prospecting and exploration without consultation. The Committee recalls that Article 7 of the Convention provides that 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 shall participate in the formulation, implementation, and evaluation of plans and programmes for national and regional development which may affect them directly. In the case of natural resources and development projects, the requirement to consult must be part of the broader process of participation set forth in Article 7 of the Convention. In the case of natural resources belonging to the State, the consultation procedure set in Article 15(2) shall apply to lands within the meaning of Article 13(2) (total environment of the areas which the peoples concerned occupy or otherwise use), and not only reservations. The Committee recalls that pursuant to Article 14, Governments have a duty to identify the lands which the peoples concerned traditionally occupy and to guarantee effective protection of their rights of ownership and possession. Accordingly, in the case of the reservations, which cover not the total area but only a delimited part of it to which the indigenous peoples hold title, pursuant to Article 14 the Government should guarantee the rights of ownership and possession and all other rights deriving therefrom, and not only the right to consultation and participation. The Committee accordingly asks the Government fully to guarantee effective protection of the rights of ownership and possession of the peoples concerned, as required by Article 14(2) of the Convention, to take steps to protect the other lands traditionally occupied with a view to recognition of ownership and possession, and to suspend activities arising from concessions granted for exploration and/or infrastructure projects, pending the enforcement of Articles 6, 7 and 15 of the Convention. The Government is asked to provide information on the measures taken in this regard.

Decree No. 1320. The Committee recalls that at its 282nd Session (November 2001), the Governing Body found the process of prior consultation as established in Decree No. 1320 to be inconsistent with Articles 2, 6, 7 and 15 of the Convention, and requested the Government to amend Decree No. 1320 of 1998 so as to align it with 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 (document GB.282/14/3, paragraphs 79 and 94). The Committee notes with regret that in 2008 the Government has still not applied the Governing Body’s recommendation. It therefore urges the Government to do so and to provide information on the measures taken in this regard.

The Committee reiterates its request of 2007 for information about the implementation of the Governing Body’s recommendations made in November 2001 in two reports it adopted on representations alleging non-compliance with the Convention by the Government of Colombia (GB.282/14/3 and GB.282/14/4).

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

[The Government is asked to reply in detail to the present comments in 2009.]