Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

Other comments on C169

Observation

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Articles 2, 6 and 33 of the Convention. 1. Prior consultation. In its previous comments, the Committee noted Decision No. 2039/2010 establishing the requirement to seek the intervention of the Paraguayan Indigenous Institute (INDI) in all consultation processes with indigenous communities, with the guidelines for each consultation process to be established on a case-by-case basis. The Committee noted the concern expressed by the International Organisation of Employers (IOE) at the negative consequences for business that may arise from the failure to comply with the obligation of consultation. The Committee also observed that the representatives of the indigenous peoples highlighted irregularities that violated the right to consultation and to free, informed and prior consent recognized by the Convention, and that in August 2014 they formally communicated to the National Congress their disagreement with the Bill on indigenous peoples’ right to prior consultation which the Ombudsman’s Office had submitted to the legislature. They considered that the indigenous organizations had not been consulted in this respect and so they called for the Bill to be shelved.

The Committee notes that the Government indicates in its report that the Bill submitted to the legislature in 2013 had been rejected by the Commission on Indigenous Affairs of the Chamber of Deputies. The Government’s report includes information from the INDI to the effect that a draft decree establishing a protocol governing a process of consultation and consent vis-à-vis the indigenous peoples of Paraguay is at the approval stage before the executive authority. The draft decree is the result of a joint initiative conducted with over 30 indigenous organizations and was discussed and approved at two workshops on consultation and free, informed and prior consent, organized with the indigenous organizations by the INDI and the Federation for the Self-determination of Indigenous Peoples. The Government indicates that once the decree is adopted, the INDI will continue to advise the public authorities and the legislature on the establishment of specific consultation procedures for certain national projects, such as the Hydrocarbons Bill or the Sanitation and Drinking Water Programme for Chaco and medium-sized towns in the Eastern Region of Paraguay.

The Committee observes in this regard that the United Nations Special Rapporteur on the rights of indigenous peoples, in her 2015 report, stated that there was widespread failure by the Government in Paraguay to fulfil its duty of consultation prior to the adoption of legislative, political and administrative measures which directly affect indigenous peoples and their lands, territories and natural resources (A/HRC/34/48/Add.2).

The Committee trusts that all necessary steps will be taken as soon as possible to ensure the adoption of the decree establishing the protocol governing a process of consultation and consent vis-à-vis indigenous peoples so as to ensure that the peoples concerned are consulted through appropriate procedures whenever legislative or administrative measures are planned which may affect them directly. In the meantime, the Committee requests the Government to provide information on the specific consultation processes undertaken regarding draft legislation or administrative measures likely to affect indigenous peoples, indicating those in which the INDI has supplied advice.

2. Coordinated and systematic action. The Committee noted the functions assigned to the INDI, which is responsible for coordinating action on indigenous rights and ensuring their observance. The INDI acts as the interface between the indigenous peoples and the other public institutions responsible for administering programmes for them. The Committee observes that, according to information on the website of the Technical Secretariat for Economic and Social Development Planning, an international forum was organized in August 2017 for the exchange of experiences with regard to the formulation of a national plan for indigenous peoples. The aim is to set up a dialogue forum for participation in the formulation of the plan as a distinctive public policy agreed upon by the indigenous peoples. At the forum, the indigenous organizations indicated that they would continue to monitor this process in the regions where indigenous communities are located, while the public institutions undertook to manage the funds needed to organize forums of this kind. The Committee trusts that the national plan for indigenous peoples will be adopted in the near future and requests the Government to indicate the manner in which its implementation will contribute to coordinated and systematic action designed to protect the rights of indigenous peoples. The Committee also requests the Government to provide information on the dissemination and consultation process carried out in this respect. Furthermore, observing that, according to the website of the Ministry of Public Finance, the budget for the INDI was reduced in 2015 and 2016, the Committee hopes that the Government will assign all the necessary financial and human resources to enable the INDI to duly discharge its functions, in accordance with Article 33(1) of the Convention.

Part II. Article 14. Lands. With regard to the previous comments on progress made regarding the regularization of lands traditionally occupied by indigenous peoples, the INDI indicates that its main function continues to be to secure the legal status of indigenous territories. Hence, between 2010 and 2014, title was granted with respect to 283,996 hectares of land. Titles of ownership were granted in the departments of San Pedro, Caaguazú and Alto Paraguay, for a total of 59,465 hectares in 2013. Ownership titles were granted in respect of 73,360 hectares in various departments in 2014. According to the INDI, out of 493 indigenous communities, 357 (72.4 per cent) have land that is secured and 343 of these (96.1 per cent) hold a title of communal ownership. Moreover, as regards the implementation of the rulings of the Inter-American Court of Human Rights referred to by the Committee in its previous comments, the Committee welcomes the adoption of Act No. 5194 of 12 June 2014 expropriating two ranches in the department of Chaco (14,403 hectares) in the public interest and entrusting them to the INDI for subsequent assignment to the Sawhoyamaxa indigenous community of the Enxet people. In addition, as regards the Yakye Axa indigenous community, the deed relating to the purchase of their alternative lands is undergoing registration in the public records. However, in the case of the Xákmok Kásek indigenous community, the State is still in discussions with the private owners of the ranches being reclaimed.

The Committee encourages the Government to continue making every effort to guarantee the protection of the rights of ownership and possession of indigenous peoples, and trusts that the Government will provide information in its next report indicating visible progress regarding the regularization of lands that indigenous peoples have traditionally occupied and the grant of title to them. The Committee also requests the Government to provide information on the expropriation measures being examined by the legislature and on the judicial proceedings connected with land possession in which the INDI has acted as an intermediary.

Article 15. Natural resources. Forestry undertakings. In its previous comments, the Committee noted the concern expressed by the Authentic Single Confederation of Workers (CUT–A) regarding environmental and forestry management in relation to lands assigned to indigenous communities and regarding the occupation of indigenous community lands by landless rural people (campesinos sin tierra). In this regard, the Government indicates that the INDI, aware of the environmental problems affecting indigenous peoples, established the Department for Socio-Environmental Matters in 2015, whose mandate is to oversee projects affecting indigenous communities and reduce their environmental impact. Accordingly, complaints have been lodged with various prosecution services regarding cases of deforestation, indiscriminate logging and changes in land use, and these have resulted in important precedents being set. The Government indicates that a legal and administrative framework is also being established to promote indigenous communities’ access to payment for environmental services, adapting existing requirements to the communities’ legal and cultural reality and making them more flexible. The Specialized Environmental Prosecution Unit (UFEDA) has been established to deal with offences against the environment and look after diverse community interests, including matters that affect the interests of indigenous peoples. The Committee notes these measures, the purpose of which is to strengthen indigenous peoples’ capacity to defend their rights and interests and file complaints in the event of violations. In this regard, the Committee recalls that the Convention provides that the indigenous peoples concerned shall be consulted before any programmes for the exploration or exploitation of the resources pertaining to their lands are undertaken or permitted. While noting the measures adopted, the Committee requests the Government to provide detailed information on specific examples of the manner in which the rights of indigenous peoples to participate in the use, management and conservation of the natural resources pertaining to their lands has been safeguarded. The Committee also requests the Government to send information on the assessments of the social and environmental impact that may result from the exploitation of natural resources on the territories of indigenous peoples.

Part III. Article 20. Recruitment and conditions of employment. In its previous comments, the Committee encouraged the Government to continue taking steps to eliminate situations of forced labour and discrimination affecting the members of certain indigenous peoples, especially in the Chaco region, and asked it to provide information on activities undertaken in this field by the public authorities established in the region, such as the Regional Labour Directorate in Chaco. In this regard, the Government indicates that in 2015 the Ministry of Labour recruited 30 new labour inspectors. The Directorate for Inspections conducted inspections in the Chaco region in the second half of 2015 as part of an investigation into possible situations of forced labour, though no specific cases of forced labour were identified. The Committee welcomes the adoption in November 2016 of the National Strategy for the Prevention of Forced Labour 2016–20 (Decree No. 6285/16). It observes that a series of consultation workshops were held with social actors, representatives of public institutions and indigenous communities in order to gather inputs to formulate a strategy. The Committee observes that the Ministry of Labour website indicates that a combined inspection and police unit operating in Chaco, headed by the Anti-Trafficking Unit at the Public Prosecutor’s Office, found indigenous workers from the Ache community in a situation of forced labour in a workplace in the department of Boquerón. It also observes that the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, in her statement of 24 July 2017 at the end of her mission to Paraguay, indicated that she had received many reports of forced and bonded labour in the Chaco region. She stated in her report that she did not believe that “forced or bonded labour takes place across all or even the majority of employers. … However, information received suggests that there are instances of, and vulnerability to, forced and bonded labour within some labour sites and a lack of regulation amongst smaller employers.”

The Committee encourages the Government to continue making every possible effort to ensure that the National Strategy for the Prevention of Forced Labour is actually implemented in practice, particularly in the regions where evidence of forced labour involving indigenous communities has been found. The Committee requests the Government to indicate the measures taken to continue strengthening the presence of the State in these regions (the labour inspectorate’s technical unit for the prevention and elimination of forced labour, the subcommittee of the Committee on Fundamental Rights at Work and the Prevention of Forced Labour in the Chaco region, and the office of the Directorate of Labour in Teniente Irala Fernández) with a view to raising the awareness of vulnerable communities regarding the risk of forced labour, identifying and protecting the victims and the persons at risk. The Committee also refers to its comments on the application of the Forced Labour Convention, 1930 (No. 29).

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