Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Lands

Article 14 of the Convention. Land registry. In its previous comments the Committee noted the legislative and administrative measures concerning the legalization and allocation of lands. It asked for information on all the lands occupied by black and indigenous communities which have not yet been demarcated or in respect of which ownership has not been established, and on the programmes or projects, either planned or already under way, designed to undertake those tasks. The Government indicates that it does not have precise statistical information regarding the lands occupied by indigenous and black communities which have not yet been demarcated or in respect of which ownership has not been established, and it does not have a map which indicates demarcated properties or those in respect of which title has been established. The Government provides some statistical information on land allocations by district and surface area undertaken in 2006. According to the communication from the Ecuadorian Confederation of Free Trade Unions (CEOSL), in view of the fact that there is no reliable registration information, partly because of the existence of false title deeds, it is necessary to establish a land registry to determine clearly which lands have been legalized, which lands are in the process of legalization and which are the property of the State. The Committee considers that such information is relevant to ensuring compliance with Article 14(2) of the Convention, which states that governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. The Committee requests the Government to supply information on whether consideration is being given to establishing a land registry system or on any steps which it is contemplating in order to have accurate and reliable information enabling it to determine the lands traditionally occupied by the peoples concerned.

Lands, and bodies responsible for the establishment of ownership. The Committee notes the Government’s statement that it is the National Institute of Agrarian Development (INDA) which administers the procedure for transfers of private ownership, incorporation of small holdings, allocation and consequent legalization of lands for the development of the Montubio, indigenous and
Afro–Ecuadorian peoples, and establishment of ownership. The Committee notes that, according to the communication from the CEOSL, a total of 1,295,759 hectares in the Amazon region were identified for legalization but that INDA, the body with competence for that task, does not have the necessary resources. The Committee requests the Government to take the necessary steps to ensure that these bodies can guarantee the application of the rights referred to by the Convention and to supply information in this respect.

Legislative and administrative measures with regard to lands and consultation. In its previous comments the Committee asked the Government to provide information on the mechanisms adopted to implement the process of prior consultation laid down by Article 6 of the Convention in relation to the legislative and administrative measures which could affect the land rights of the peoples covered by the Convention. The Government refers to its statement indicating that the Secretariat of Peoples, Social Movements and Civic Participation will safeguard these rights. However, the Committee’s comments referred to specific legislative and administrative measures which regulated the land rights of the peoples concerned, for example administrative decisions establishing the parameters for determining the ancestral ownership of indigenous lands. The Committee requests the Government to consult the peoples concerned with regard to these measures pursuant to Article 6 of the Convention and to keep it informed regarding the consultations undertaken in this respect. It also requests the Government to indicate the criteria used to define traditional occupation and whether the indigenous peoples were consulted with regard to these criteria.

Article 18. Protected areas and protection against intrusions. The Committee further notes from the communications sent by the CEOSL that various problems exist as regards the effective observance of indigenous rights in protected areas. In the Tagaeri–Taromerani protected area, for example management is reportedly ineffective and pressure is exerted by logging companies involved in illegal forest operations, companies involved in tourism and oil companies. Reference was also made to violent clashes resulting from illegal incursions into the protected area. The Committee requests the Government to take measures, pursuant to Article 18 of the Convention, to establish appropriate penalties for any unauthorized intrusion onto the lands of the peoples concerned or any unlawful use thereof by unauthorized persons, to take steps to prevent such infringements and to provide information in this respect. In particular, the Committee requests the Government to provide information on the steps taken to prevent such infringements in the
Tagaeri–Taromerani protected area and the other protected areas referred to in the communication.

Article 15. Natural resources. Legislation. The Committee notes that article 57, paragraphs 6 and 7, of the new Constitution establish the right of indigenous peoples to participate in the use, benefit, administration and conservation of renewable natural resources located on their lands; the right to prior, free and informed consultation, within a reasonable period of time, with regard to plans and programmes for the exploration, exploitation and marketing of non-renewable resources located on their lands and which could have an environmental or cultural impact on them; the right to share in the profits yielded by these projects and to receive compensation for any social, cultural or environmental damage caused by them. The consultations to be carried out by the competent authorities are mandatory and must be undertaken in a timely fashion. The Committee requests the Government to provide information on legislative or administrative measures which give effect to article 57 of the Constitution and to provide examples of its application in practice. Moreover, the Committee requests the Government to give examples of cases in which indigenous peoples’ right to share in profits, as established by the Convention and by article 57 of the new Constitution, has been recognized as a result of consultations.

Natural resources. Pending cases. In its previous comments the Committee referred to various cases of non-existent or inadequate application of the consultation and participation processes laid down by the Convention in relation to natural resources, with particular reference to the Cubayeno–Imuya area, the Cofane, Siona and Secoya peoples, and Block 23. The Committee requests the Government to supply information on the steps taken by the Government, in consultation with the peoples concerned, to ensure the full application of the provisions of the Convention in the abovementioned cases.

Articles 8 to 10. Indigenous justice system. The Committee notes the Government’s statement in its report that on 8 August 2008 public prosecutors’ offices on indigenous issues have been created, comprised of indigenous officials or professionals trained to deal with different indigenous peoples. According to the report provided by the CEOSL, most officials working in the state justice system do not recognize the validity of indigenous legal systems or do not have any interest in knowing about those systems and do not apply the standards of the Convention. The Committee requests the Government to intensify its efforts to ensure a better application of Articles 8 to 10 of the Convention and to keep it informed in this respect.

Article 20. Employment. In its previous comments the Committee referred to a working group on indigenous peoples within the Ministry of Labour. According to the alternative report submitted by the CEOSL, the Ministry of Labour is drafting a plan of action entitled “Labour integration and decent employment for indigenous and Afro–Ecuadorian peoples”, with five main components relating to work. The report states that no information is available regarding the implementation and progress of the plan. The Committee requests the Government to provide information in this respect.

Article 32. Cross-border contact. The Government states that progress is being made to facilitate contact with the indigenous peoples living at the borders of Ecuador and Peru. The Committee notes that the CEOSL refers to serious problems on the border with Colombia and requests the Government to keep it informed in this respect.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the detailed report supplied by the Government of Ecuador and the comments sent by the Ecuadorian Confederation of Free Trade Unions (CEOSL), including an alternative report on the application of the Convention in Ecuador. The alternative report analyses the situation of the indigenous peoples from the ratification of the Convention in 1999 until July 2006 and was drawn up by the “Observatory for the Monitoring of Convention No. 169”, with the support and participation of various civil society groups, indigenous organizations, academic institutions, etc. The alternative report refers to problems regarding the criteria used for censuses, a greater incidence of poverty among indigenous peoples compared with non-indigenous peoples, a lack of consultation and participation particularly with regard to natural resources, and the violation of territorial rights. As regards the greater incidence of poverty, the alternative report indicates that, according to the sixth Population and Housing Census, nine out of ten persons self-defined as indigenous and seven out of ten persons self-defined as black are poor, whereas slightly less than five out of ten persons self-defined as white are poor. The Committee notes that the Government did not make any comments on this report but that, according to the Secretariat of Peoples, Social Movements and Civic Participation in official letter No. 0767-DM-SPPC-08, the alternative report could be very useful for drawing up the Government’s report on the application of the Convention.

Legislation and changes. The Committee notes the Government’s indications in various paragraphs of its report that information is provisional since, at the time the report was drafted, the adoption of the new Constitution was pending. The Committee notes that the Constitution of Ecuador came into force in October 2008 at the time of its publication in the Official Register (RO). The Government states repeatedly that changes will be made in law and in practice on the basis of the new Constitution, and that the new Constitution represents progress with regard to the indigenous peoples. The Committee notes with interest that the new Constitution establishes rights which are laid down by the Convention, including rights regarding lands, consultation, participation, cross-border cooperation, and protection and preservation of the environment. In order to have a fuller idea of the changes arising from the Constitution, the Committee requires more information on the changes made in law and in practice on the basis of the new Constitution. The Committee therefore requests the Government to supply information on the main changes in law and in practice relating to the Convention, resulting from the adoption of the 2008 Constitution.

Articles 2 and 33 of the Convention. Coordinated and systematic action. Agencies or other appropriate mechanisms. The Committee notes that, by means of Decree No. 133 of 13 February 2007, published in RO No. 35 of 7 March 2007, the Secretariat of Peoples, Social Movements and Civic Participation was established, which, with the support of the Ministry of Labour, will safeguard and coordinate the rights of indigenous peoples and communities. The Government states that in order to ensure coordinated and systematic action via the abovementioned Secretariat, three institutions were set up: the Council for the Development of Afro–Ecuadorian Peoples (CODAE), the Council for the Development of Indigenous Peoples and Nationalities (CODENPE) and the Council for the Development of the Montubio People of the Ecuadorian Coast and Sub-tropical Zones of the Coastal Region (CODEPMOC). The “Project for the development of indigenous and black peoples of Ecuador (PRODEPINE)”, to which the Committee referred in previous comments, was cancelled and taken over by CODENPE. In addition, CODENPE became an autonomous entity on the basis of the Organic Act concerning the institutions of the indigenous peoples of Ecuador (RO No. 175 of 21 September 2007). The Committee requests the Government to institutionalize and reinforce the bodies responsible for indigenous policy and also indigenous participation in those bodies, and to provide information on the measures taken in this regard, as well as information on the following:

(i)    the activities of those bodies; and

(ii)   the form that indigenous participation in those bodies takes, with reference to Articles 2 and 33 of the Convention.

Articles 6, 7 and 15. Consultation, oil activities and monitoring of the implementation of the recommendations made in document GB.282/14/2. The Government stated recently that it would be in a position in its next report to provide information on mechanisms for consultation with the indigenous and Afro–Ecuadorian peoples, once the Secretariat referred to above had the relevant data and results and also in relation to the 2008 Constitution. The Committee also notes the Government’s statement that as part of the procedures undertaken at the Ministry of Mining and Petroleum for obtaining an oil concession, the indigenous communities who would be affected by such a concession are consulted. The Committee notes that, according to the alternative report sent by the CEOSL, serious problems exist in relation to consultation, participation and oil exploitation, and particular emphasis is placed on the serious problems which the Sarayacu community has been facing since 1996 until the present day. Reference is also made to other situations in which serious shortcomings are alleged with regard to consultation, failure to comply with rulings, problems of representation, violence and other problems, with particular reference to “Block 31” in the province of Orellana and “Blocks 18 and 24” in Ecuadorian Amazonia. With regard to Block 24, the Committee notes that, in 2001, the Governing Body adopted a report concerning a representation made by the CEOSL (see GB.282/14/2). In its previous comments the Committee asked the Government to provide information on the application of the recommendations of the Governing Body contained in paragraph 45 of its report. The Committee notes the Government’s statement that it is the new Secretariat of Peoples, Social Movements and Civic Participation which will be responsible for follow-up action on this matter. The Committee expresses its concern at the time which has elapsed and at the lack of information concerning action taken to comply with the recommendations of the Governing Body. The Committee requests the Government to intensify its efforts to resolve the disputes referred to above by means of consultation and participation and requests it to provide information on the cases referred to, particularly regarding action taken to comply with the recommendations of the Governing Body in the case of Block 24.

With reference to its general observation of 2008, the Committee requests the Government to supply information on the measures taken with regard to the following:

(i)    including the requirement of prior consultation in legislation regarding the exploration and exploitation of natural resources;

(ii)   engaging in systematic consultation on the legislative and administrative measures referred to in Article 6 of the Convention; and

(iii) establishing effective consultation mechanisms that take into account the vision of governments and indigenous and tribal peoples concerning the procedures to be followed.

Part VIII of the report form. Noting: (1) the imminent changes to be made on the basis of the new Constitution; (2) the Government’s stated intention to make progress as regards consultation and participation; (3) the alternative report sent by the CEOSL; and (4) the fact that the Secretariat of Peoples, Social Movements and Civic Participation considers that the alternative report is extremely useful, the Committee considers that it would be extremely beneficial for the Government to consult the principal indigenous organizations with a view to the preparation of its next report, as this would enable it to conduct an analysis, with the participation of the peoples concerned, of the situation regarding the application of the Convention and the corresponding proposals for improving its application. The Committee requests the Government to supply information in this respect.

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

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Coordinated and systematic policy

1. Articles 2 and 33 of the Convention. The Committee notes with interest the work carried out by the Council for the Development of the Nationalities and Peoples of Ecuador (CODEMPE), the Council for Afro-Ecuadorian Peoples (CODAE) and the Institute for Amazonian Regional Eco-development (ECORAE), registered with the Office of the President of the Republic and directly associated with the development of the indigenous, Afro-Ecuadorian and Amazonian peoples of Ecuador, with a view to promoting, structuring and implementing the Project for the Development of Indigenous and Black Peoples in Ecuador (PRODEPINE). The Committee notes the mid-term evaluation of the project provided by the Government and that, in the context of the project, the implementation of the component relating to the legalization of land title was promoted in association with the National Agrarian Development Institute (INDA) and the Ministry of the Environment (MAE) through the Operational Convention for the Legalization, Adjudication and Titularization of Lands in Ecuador, which has been implemented in full. The Committee considers that, in accordance with Article 2 of the Convention, coordinated and systematic action with the participation of indigenous peoples is fundamental for the proper application of the Convention and, therefore, requests the Government to pursue its efforts for the continuation of PRODEPINE and for its conversion into a government programme.

2. Measures adopted to give effect to the provisions of the Convention including, where appropriate, legislative measures. The Committee notes the obstacles encountered in the National Congress in the adoption of national laws ensuring compliance with the rights of the indigenous and Afro-Ecuadorian peoples of the country, and particularly for the approval of the Act for the exercise of the collective rights of indigenous peoples and the Organic Act respecting the public institutions of the nationalities and peoples of Ecuador. The Committee invites the Government to continue its efforts towards the adoption of legislation necessary to apply the Convention. The Committee would be grateful if the Government would keep it informed of the progress made in relation to the draft legislation debated in Congress and on any other texts submitted for adoption.

3. Operational Action Plan, 1999-2003. The Committee notes the Government’s indication that no progress has yet been made in the establishment of the commission for the implementation of the Operational Action Plan, 1999‑2003 on the rights of indigenous nationalities and peoples in Ecuador, but that it undertakes to take the necessary measures subsequently. The Committee trusts that the Government will provide information on progress made in this regard with its next report.

Consultation and participation

4. Articles 6 and 7. The Committee notes the mid-term evaluation of PRODEPINE which, among its positive aspects, emphasizes the following: its objectives are highly relevant in responding to the priorities determined in analyses of indigenous and Afro-Ecuadorian peoples; it has made a very effective contribution to establishing an operational structure at the national level for participatory planning, consolidation and empowerment of the organizations of these peoples and the implementation of 152 development plans. With regard to the negative findings, it indicates that the beneficiaries of the project are aware of the existence of pressure of a political nature and the lack of training of the organizations to report to the communities and the State, which reduce the effectiveness of its implementation. Moreover, although the project has supported the preservation and conservation of the environment, it is not clear that the management plans issued are being complied with as the communities require further training to be able to do so. The Committee hopes that the Government will provide information in its next report on the national policies and measures adopted to remedy the negative aspects reported in the evaluation, and it requests the Government to provide a copy of the final evaluation of the project.

Administration of justice

5. Articles 8 to 10. The Committee notes the information provided by the National Council for Children and Young Persons indicating that the instructions on the administration of justice in relation to young persons from indigenous or tribal communities have not yet been finalized by the Government. The Committee notes with interest that the above noted Council is working on the development of an agenda “for the development of a minimum agenda in support of the rights of indigenous girls, boys and young persons in Ecuador, organized by the Confederation of Peoples of Kichwa Nationality of Ecuador, the Indigenous Parliament of America, the National Directorate of Intercultural Bilingual Education and the United Nations Children’s Fund”. The Committee asks to be kept informed of the progress and outcome of the planned agenda. The Committee notes the draft Bill on the administration of indigenous justice, of April 2002, the objective of which is to make the administration of justice by judicial institutions compatible with the judicial functions of the authorities of peoples who identify themselves as being of indigenous nationalities. The Committee asks to be kept informed of progress in relation to this draft Bill and any other progress achieved in giving effect to article 191 of the Constitution, which provides that the authorities of indigenous peoples shall exercise functions for the administration of justice, applying their own standards and procedures for the resolution of internal disputes in accordance with their customs or customary law, provided that they are not contrary to the Constitution and laws, and that the law shall make such functions compatible with those of the national judicial system.

Land

6. Article 14. The Committee notes with interest that, in accordance with the Operational Convention for the Legalization, Adjudication and Titularization of Lands in Ecuador, 251,044 hectares have been adjudicated and titularized in the Provinces of Esmerelda, Sucumbios, Napo, Orellana, Pastaza, Carchi, Imbabura and Morona Santiago; 101 property titles duly formalized and entered into the property registers of the respective cantons have been issued, benefiting 2,660 families with a population of 13,989 indigenous and Negro persons. The Committee further notes that land adjudication and titularization will take place under the terms of different laws, administrative resolutions and inter-institutional agreements (including section 38 of the Agrarian Development Act, administrative resolution No. 002 of May 2002 determining the parameters for establishing ancestral ownership, the agreement concluded between the INDA and the MAE for the approval of integrated management plans in adjudication processes). The Committee requests the Government to provide information on the procedures adopted for the implementation of the process of prior consultation set out in Article 6 of the Convention in relation to these legislative and administrative measures which are liable to affect the indigenous and tribal peoples involved and hopes that it will apply the consultative provisions of the Convention in this respect.

7. Lands which have not been delimited. The Committee recalls that the Convention affords protection not only to lands for which the peoples concerned already hold title of ownership, but also lands which they traditionally occupy. It also recalls that under the terms of the Convention, governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession (Article 14, paragraph 2). In this respect, the provisions in the Convention which address the issue of land, and particularly Articles 13 and 14, have to be interpreted in the framework of the general policy provided for in Article 2, paragraph 1, of the Convention, under the terms of which governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity. Furthermore, in practice these provisions need to be articulated with Article 6 of the Convention, which provides that consultations have to be carried out with the peoples concerned in good faith and in a form appropriate to the circumstances, and that governments shall establish means by which these peoples can freely participate in the adoption of decisions on matters which may concern them. The Committee trusts that in its next report the Government will be in a position to provide information on the total area of lands occupied by Negro and indigenous communities which have not yet been delimited and titularized and on programmes or projects that are being implemented or are planned to complete these operations. It also requests information on whether consultation bodies exist with indigenous peoples and Negro communities for the design, monitoring and evaluation of the implementation of such programmes and projects.

8. Declaration of public utility. The Committee requests the Government to continue providing information in future reports on cases in which, under the terms of article 84(2) of the Constitution, the State declares community lands of indigenous and Afro-Ecuadorian peoples to be of public utility. It also requests the Government to continue providing information on the procedures and manner in which the views of the peoples concerned are sought and taken into account.

9. Rural programme. With reference to point 18 of its previous direct request, the Committee notes that the INDA is developing the Programme for the Regularization and Administration of Rural Lands (MAG-INDA Agreement). The Committee requests the Government to provide information in its next report on the manner in which effect is given to Articles 6, 7, 14 and 19 in the context of the rural programme and to provide a copy of the relevant texts.

Natural resources and consultation

10. Article 15. With reference to point 12 of its previous direct request, the Committee recalls that in accordance with Article 13, paragraph 2, of the Convention, the “use of the term ‘lands’ in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use”. It once again requests the Government to provide information on the manner in which the rights set forth in article 84(4) and (5) of the Constitution are exercised in practice relating to the participation of indigenous peoples in the use, exploitation, management and conservation of renewable natural resources pertaining to their lands, as well as on the consultation of these peoples concerning plans and programmes of exploration and exploitation of non-renewable resources which may affect their environment and culture. It also requests the Government to take the necessary measures to provide information on the application of this provision in relation to the indigenous communities residing in the Yasuní National Park and on the lands that were assigned to the Huaoraní people in 1990.

11. Cubayeno-Imuya. The Committee notes the indications provided by the Ministry of Energy and Mines in response to the request for information by the Committee in point 13 of its last direct request. The Committee notes with interest that since the declaration of the area known as Cubayeno-Imuya as an untouchable conservation area prohibited for any type of extractive activity, there have been no oil exploration or mining activities pursuant to Executive Decrees Nos. 551 and 552 of 29 January 1999. The Committee notes that the records of the Ministry of Energy and Mines do not contain complaints relating to violations of these Decrees with reference to oil exploration and mining operations. The Committee requests information on the existence of any complaints of violations of other aspects of the above Decrees, as well as any complaints of violations of the Decrees lodged with other government bodies or with the judicial authorities and on the action taken thereon.

12. The Cofanes, Siona and Secoya peoples. The Committee notes the reply by the Ministry of Energy and Mines indicating that the information requested in the previous comment on whether the above Decrees have benefited the Cofanes, Siona and Secoya peoples can only be supplied by the peoples concerned. The Committee recalls that the Convention not only recognizes the rights of indigenous and tribal peoples, but also establishes obligations for States (see Articles 2, 4 and 7). The Committee trusts that the Government will provide information on the impact in practice of the above Decrees.

13. Block 23. With reference to point 14 of its previous direct request, the Committee notes the information supplied by the Ministry of Energy and Mines indicating that the share agreement concluded by the CGC and the Ecuadorian State for the exploitation and production of Block 23 has been suspended since 9 April 1999, when a state of force majeure was declared, and that no oil exploration activities have been undertaken since then. The Government indicates that the environmental impact study provided for in the relevant legislation has been approved. The Committee recalls that the carrying out by the Government of environmental impact studies does not replace the consultations envisaged in Article 15, paragraph 2, of the Convention. This provision establishes that “governments shall establish or maintain procedures through which they shall consult with 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”. As the Committee has indicated in similar cases, when establishing or maintaining such procedures, governments should take into account the procedural requirements set out in Article 6 of the Convention and the provisions of Article 7 of the Convention, under the terms of which, among other aspects, “Governments shall ensure that, whenever appropriate, studies are carried out, in cooperation 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 a fundamental criteria for the implementation of these activities.” The Committee, therefore, requests the Government to hold consultations with the peoples concerned, taking into account the procedure established in Article 6 of the Convention, to ascertain whether and to what degree their interests would be prejudiced, as set out in Article 15, paragraph 2, of the Convention, and to examine, where possible, the carrying out of the studies envisaged in Article 7 of the Convention in cooperation with the peoples concerned. The Committee requests the Government to provide detailed information on this matter with its next report.

14. Kichwa de Sarayuka “Tayjasaruta” people. The Committee notes the Government’s indication that the application made by the Governing Council of the Kichwa de Sarayuka “Tayjasaruta” people and other communities in the area in November 2002 to the Ecuadorian authorities rejecting the opening of oil wells on their lands has given rise to international legal action at the level of the Inter-American Court of Human Rights, which ordered interim measures that are being applied. The Committee requests the Government to supply information on the action taken to give effect to the interim measures ordered by the Inter-American Court of Human Rights, and the manner in which the rights of consultation and participation, provided for in Articles 6, 7 and 15 of the Convention, are applied in giving effect to such measures, as well as on developments relating to the case. The Committee once again requests the Government to provide information on the manner in which effect is given to Article 14 in the lands of the Sarayuka community.

15. Article 18. With reference to point 17 of its previous direct request, the Committee trusts that the Government will be in a position in its next report to provide information on the action taken against intrusions into lands that are owned or used by indigenous communities during the period covered by the report, and any related rulings and sanctions. The Committee recalls, as it has on other occasions, that the obligation to hold consultations, as set out in Article 15, paragraph 2, rests on the State. The Committee requests the Government to provide information on the procedures adopted or envisaged to comply with this obligation prior to the conclusion of share agreements or the provision of services which affect the environment of the areas occupied by the communities or peoples concerned.

16. Article 20, paragraph 3(a), (b) and (c). The Committee once again requests the Government to take the necessary measures so that it can provide information in its next report on the application of the above provisions, particularly including statistics on the internal migration of indigenous persons.

17. Articles 4 and 20 to 23. With reference to points 3, 19, 20 and 21 of its previous direct request, the Committee notes that the Government has formulated and will shortly implement the project “Labour Integration of Indigenous Peoples”, the objective of which is to give effect to all the provisions of Convention No. 169 and that in the context of its implementation, it is planned to establish an Indigenous Assistance Centre. The Committee also notes that the Government plans to implement a National Labour Integration Programme based on alternative development plans established by these people, which will include them as actors in the social and economic development of the country. The Committee requests the Government to keep it informed of progress regarding these initiatives and on their results.

18. Articles 24 and 25 (social security and health) and 26 to 29 (education). The Committee notes the information and statistical data provided by the Government in relation to points 22, 23 and 24 of its previous direct request. It hopes that the Government will continue to provide information in this respect.

19. Article 32. Contacts and cooperation across borders. With reference to point 25 of its previous direct request, the Committee notes with interest the information provided by the Government on the various projects and initiatives carried out in the context of the Bi-national Plan which arose out of the Broad Ecuadorian-Peruvian Integration Agreement. The Committee would be grateful if the Government would provide information on the manner in which the provisions set out in the Convention are applied in the implementation of the projects and initiatives of the Bi-national Plan.

20. Judicial activities and decisions. The Committee notes the Government’s indication that it has no knowledge of court decisions issued on matters of principle relating to the application of the Convention. It also notes the Government’s indication that it is awaiting the information requested from the High Courts of Justice of the Provinces of Sucumbios and Orellano on an appeal lodged with the High Court of Justice of Nueva Loja relating to severe pollution caused by the oil-related activities of the company Texaco, which are alleged to have caused cancer, miscarriages and respiratory problems among the members of local communities. The Committee requests the Government to continue providing information in future reports on any judicial decisions handed down, and to supply the texts of such decisions, particularly in relation to the above appeal.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

1. The Committee notes that according to the report of the mission undertaken in October 2005 by the ILO Subregional Office for the Andean countries, the Government will set up a working group in the Ministry of Labour to examine the measures to be adopted to give effect to the recommendations made by the supervisory bodies in relation to the Convention and will invite ILO officials to participate in its meetings to provide the necessary technical assistance. The Committee hopes that the Government will keep it informed of the activities of the working group and the progress achieved. The Committee also notes with interest that the Government has requested ILO technical assistance for the implementation of the project “Labour integration of indigenous peoples”, the objective of which is to improve the application of the Convention. The Committee awaits further information on the commencement and development of such assistance.

2. The Committee notes the difficulties encountered by the Government in providing the information requested to follow up the recommendations of the tripartite committee which examined the representation made by the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL). The CEOSL alleged the failure to hold consultations through appropriate procedures, particularly with regard to the Shuar people, in relation to the granting of contracts conceding to individual contractors the right to carry out oil exploration and exploitation activities. The Committee notes with interest the Government’s request for ILO technical assistance to give effect to these recommendations. The Committee trusts that the Government will be in a position to provide detailed information with its next report on the effect given to the recommendations of the tripartite committee, and particularly on the following: the establishment of effective mechanisms for prior consultations; the progress achieved in practice with respect to consultations with the peoples situated in the zone of “Block 24”, including information on the participation of these peoples in the use, management and conservation of these resources and the benefits from oil exploitation activities, as well as their receipt of fair compensation for any damage caused by exploration and exploitation in the zone.

3. The Committee draws the Government’s attention to the fact that consultation is the instrument envisaged by the Convention to institutionalize dialogue with indigenous peoples, ensure processes of inclusive development and prevent and resolve disputes. Consultation within the meaning of the Convention endeavours to harmonize interests that are sometimes competing, through appropriate procedures. Accordingly, the provisions on consultation, and particularly Article 6, are the seminal provisions of the Convention on which the application of its other provisions are based.

4. Part VIII of the report form. The Committee, considering that the Convention is fundamentally an instrument that promotes dialogue and participation, wishes to remind the Government that this Part of the report form for the Convention, approved by the Governing Body, indicates that “although such action is not required, the government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application”. The Committee asks the Government to indicate whether such consultations have been held.

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

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

1. The Committee notes the information provided by the Government in its report and the attached texts, which include statistical information.

2. Article 2 of the Convention. The Committee would be grateful if the Government would provide information in its next report on the continuation of the Project for the Development of Indigenous and Black Peoples in Ecuador (PRODEPINE).

3.  Article 4. In the context of its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Committee has been indicating for years that despite the efforts that are being made to eliminate the last vestiges of racial discrimination, it still exists in practice. Some 80 per cent of the indigenous population is below the vulnerability threshold and is not able to meet basic needs such as food, education and housing. The Committee hopes that the Government will provide information on the national policies adopted for this purpose and on the action that is being taken or is planned to eliminate discrimination in employment and occupation against indigenous peoples and the Afro-Ecuadorian population.

4. The Committee notes the information provided by the Government in its report indicating that the commission has not yet been established for the implementation of the Operational Action Plan, 1999-2003, on the rights of indigenous nationalities and peoples in Ecuador. The Committee trusts that the Government will provide information in its next report on positive developments in this respect.

5. Articles 5 and 7. The Committee notes the information provided by the Government in its report indicating that indigenous communities are undertaking action on their own initiative for the social development of communities and the self-determination of peoples. It also notes that the Government is not participating in these processes and confines itself to ensuring self-determination and respect for the customs, beliefs and other ancestral characteristics of these communities. The Committee recalls that, in accordance with the Convention, the Government is under the obligation to establish means so that indigenous and Afro-Ecuadorian communities can develop their own institutions and initiatives. With regard to this obligation, the Committee notes the Government’s indication in its report that regulations have not yet been issued under article 84(13) of the Constitution, under which indigenous peoples - including black or Afro-Ecuadorian peoples in accordance with article 85 - have the right to determine priorities in plans and projects for the development and improvement of their economic and social conditions, and to appropriate financing from the State. The Committee trusts that the Government will be able to provide information in its next report on the progress achieved in this important area.

6. Article 6. The Committee notes the information provided by the Government in its report indicating that the Council for the Development of the Nationalities and Peoples of Ecuador (CODENPE) intervenes by holding consultations with the leaders of the various indigenous communities. With regard to the request for clarification made by the Government to the Committee on the possibility of sending the report to other organizations which are not workers’ and employers’ organizations, the Committee recalls that in view of the special nature of this Convention, in Part VIII of the report form approved by the Governing Body, it is proposed that governments may find it helpful to consult organizations of indigenous or tribal peoples in the country through their traditional institutions, not only to give effect to the Convention, but also in preparing reports on its application. This measure is not a requirement of the Convention. The Committee notes with interest the Government’s indication that it will send a copy of the present report to the CODENPE so that this Council can in turn distribute it to the indigenous organizations that it considers appropriate, and the Committee trusts that this practice will continue in future. The Committee hopes that the Government will also indicate whether it has received comments from these organizations on its reports, and on any action taken as a result.

7. Article 7. With reference to its previous comments, the Committee notes the Government’s indication in its report that there has been no progress in carrying out activities under the Operational Action Plan, 1999-2003. Nevertheless, the Committee trusts that the Government will indicate whether any of the components of the plan have been implemented, such as the multiplication and strengthening of autonomous political and administrative units, the formulation of a basic law on indigenous peoples and nationalities and the law on the demarcation of indigenous lands. The Committee also hopes that the Government will provide information on the manner in which the PRODEPINE and other projects take into account and apply the criteria set forth in paragraphs (2) and (3) of this Article of the Convention, where appropriate, indicating the manner in which indigenous and Afro-Ecuadorian peoples have been associated with the measures to protect and preserve the environment in the lands that they inhabit.

8. Articles 8 to 10. In its previous comments, the Committee noted that, by virtue of article 191 of the Constitution, the authorities of indigenous peoples shall exercise functions relating to the administration of justice, applying their own standards and procedures for the settlement of internal disputes in accordance with their customs and customary laws, provided that they are not contrary to the Constitution and the laws, and that the law shall make these functions compatible with those of the national judicial system. The Committee notes that no progress has yet been made in the implementation of this constitutional provision and that the Code of Minors has been replaced by the Code of Children and Young Persons, section 310 of which provides that the conviction and application of socio-educational measures to young persons belonging to indigenous communities for violations committed in their communities shall be in accordance with section 264 respecting protective judicial measures. The Committee trusts that the Government will provide information in its next report on any progress made in the implementation in practice of this constitutional provision.

9. Article 14. The Committee notes that the Government has not provided information in its report on the total area of lands for which title was adjudicated by the end of the period covered by the report and it trusts that the Government will be in a position to do so in its next report. It notes that the procedure is administered by the National Agrarian Development Institute (INDA) and hopes that it will be possible to provide information on the total area of lands which are demarcated and for which title has been adjudicated, and those for which this has not yet been done.

10. The Committee requests the Government to continue providing information in future reports on cases in which, under the terms of article 84(2) of the Constitution, the State declares community lands of indigenous or Afro-Ecuadorian peoples to be of public utility. It also requests information on the procedures and manner in which the views of the people affected are sought and taken into account.

11. The Committee notes the Government’s indication in its report that it does not have in its possession the communication of the Ecuadorian Central Organization of Class Organizations (CEDOC) alleging that the provisions of the Rural Communities Act are incompatible with other national legislation. The Committee informs the Government that the Office sent this communication to it on 14 November 1994. The Committee will once again send this communication and trusts that the Government will provide its comments in its next report.

12. Articles 15 and 16. The Committee reiterates its previous request to the Government to provide information on the manner in which the rights set forth in article 84(4) and (5) of the Constitution are exercised in practice relating to the participation of indigenous peoples in the use, exploitation, management and conservation of renewable natural resources situated on their lands, as well as on the consultation of these peoples concerning plans and programmes of exploration and exploitation of non-renewable resources which may affect their environment and culture. The Committee notes the indication in the report that this information is not available and hopes that it will be possible to provide it in the near future. The Committee is particularly interested in the application of these provisions in relation to the indigenous communities residing in the Yasuní National Park and in the lands assigned to the Huaoraní people in 1990.

13. The Committee requests the Government to provide information on the effect is given in practice to Executive Decrees Nos. 551 and 552 of 29 January 1999, declaring the area known as Cubayeno-Imuya an untouchable conservation area prohibited for any type of extractive activity, even though the Imuya oil exploration zone and the Zabalo I and Siona oil wells are located in this area. Please also report any complaints lodged concerning violations of the above provisions. The Committee reiterates its previous request to the Government to indicate in its next report whether the above Decrees have benefited the Cofanes, Siona and Secoya peoples.

14. Reiterating its previous request, the Committee asks the Government to provide information on any oil exploitation activities in the lands of the Sarayaku community and on the manner in which in such cases Articles 14 and 15 of the Convention are applied, in the light of the provisions of Articles 6 and 7. In this respect, the Committee notes the existence of an application made in November 2002 by the Governing Council of the Kichwa de Sarayaku "Tayjasaruta" people and other communities in the area to the Ecuadorian authorities rejecting the opening of oil wells in their lands and which also gave rise to a recommendation in May 2003 by the Inter-American Commission on Human Rights to the Government of Ecuador.

15. The Committee requests the Government to provide information in its next report on a claim filed with the High Court of Justice of the city of Nueva Loja in relation to severe pollution caused by the oil extraction activities of the Texaco company in the north-east of the provinces of Sucumbíos and Orellana causing cancer, the failure of pregnancies and respiratory problems in the members of the local communities.

16. Article 17. The Committee notes the information provided by the Government indicating that special legislation for the transmission of land rights for indigenous persons was not adopted. The Committee hopes that the Government will make efforts in the near future to give effect to paragraph 1 of this Article of the Convention.

17. Article 18. The Committee notes the information provided by the Government in its report that the communities themselves take responsibility for preventing the intrusion of unauthorized persons in their land. The Committee reminds the Government that, under the terms of this Article, the Government is under the obligation to take measures to prevent such offences. The Committee requests the Government to keep it informed of the action taken against intrusions on the lands that are owned or used by indigenous communities during the period covered by the report and, where appropriate, any related rulings and sanctions.

18. Article 19. In its previous comment, the Committee noted with interest the Agrarian Development Act which provides for two members of the INDA to be representatives of national organizations of indigenous persons, montubios, Afro-Ecuadorian persons and persons living in rural areas in general; the adjudication of lands to the peoples concerned; and the training of indigenous persons and the promotion of ancestral techniques to be applied in general in the various agrarian programmes. The Committee notes the Government’s reply in its report that it does not yet have information in reply to the Committee’s previous request concerning the various agrarian programmes existing in the country. The Committee hopes that it will provide this information with its next report.

19. Article 20, paragraph 3(a), (b) and (c). The Committee notes the Government’s reply in its report that it does not yet have detailed information on the situations covered by these provisions of the Convention, nor statistical data on the internal migration of indigenous persons. The Committee requests the Government to take the necessary measures so that it can provide information in its next report on the application of the above provisions, including statistics where available, as well as on the effect given to point 15(1) of the Operational Plan of Action, 1999-2003, on the establishment of a centre to receive and guide indigenous migrants in the major cities which, among other functions, would warn them of employment risks and provide information on employment, social security, housing and health.

20. The Committee notes that a national consultation with indigenous persons was held in June 2002 to determine the types of work that should be considered hazardous. The Committee requests the Government to provide information in its next report on the outcome of this consultation, and on the activities undertaken to raise the awareness of labour inspectors concerning the special vulnerability of indigenous and Afro-Ecuadorian peoples and the necessity to afford protection for the rights set forth in these provisions of the Convention.

21. Articles 21 to 23. The Committee notes the information provided by the Government indicating that between January 2000 and June 2003 training was provided to 50,035 persons in the urban marginal population and from rural areas through the National People’s Training Plan. It also notes that very interesting experiments have been carried out in eastern indigenous communities in relation to training by the Ecuadorian Vocational Training Service (SECAP) in handicrafts, agrarian activities and other fields characteristic of these communities. The Committee requests the Government to provide more detailed information on this subject, with an indication of the plans and programmes that are currently being carried out and the indigenous communities covered by them. Please also indicate whether consultations were held with representatives of indigenous communities in the formulation and implementation of these plans and programmes.

22. Article 24. The Committee notes the information provided by the Government on the conditions for access to the rural social security scheme, as well as the information attached on the scheme. It hopes that the Government will be in a position to indicate in its next report the percentage of indigenous persons currently covered by the scheme.

23. Article 25. With reference to its previous request, the Committee hopes that the Government will be in a position to provide detailed information in its next report on the number of health centres existing in regions inhabited by indigenous peoples, the number of medical, paramedical and nursing personnel and any information that would make it possible to gain a better idea of the manner in which this Article is applied.

24. Articles 26 to 29. With reference to its previous request, the Committee hopes that the Government will be in a position to provide detailed information in its next report by region and by people on the literacy rate by age and the levels achieved by the various indigenous peoples and the Afro-Ecuadorian population, as well as the same information for the non-indigenous population.

25. Article 32. Reiterating an earlier request, the Committee would be grateful if the Government would provide information on the measures adopted or envisaged in the economic, social, cultural, spiritual and environmental fields in the context of the Frontier Development Agreement concluded between Ecuador and Peru in 1999, as well as on any other agreement relating to indigenous peoples which may have been concluded with other neighbouring countries.

26. Part IV of the report form. The Committee trusts that the Government will be in a position to indicate in its next report whether the ordinary courts or other tribunals have handed down rulings on matters of principle relating to the application of the Convention. If so, please provide copies of these rulings.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

1. The Committee notes the information provided by the Government in its report and the attached texts.

2. In its previous comments, the Committee referred to the recommendations of the Governing Body in relation to the representation made by the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL). This workers’ organization alleged the failure to hold consultations through appropriate procedures, particularly with regard to the Shuar people, in relation to the granting of contracts by which the State delegated to individual contractors the right to carry out oil exploration and exploitation activities. In accordance with the recommendations of the tripartite committee set up to examine the representation, the Committee of Experts requested the Government to report in detail on the effect given to the recommendations of the tripartite committee, and in particular on: the establishment of an effective mechanism for prior consultations; the progress achieved in practice in respect of consultations for the peoples situated in the zone of "Block 24", including information on the participation of these peoples in the use, management and conservation of these resources and in the benefits from oil-producing activities, as well as their receipt of fair compensation for any damage caused by exploration and exploitation in the zone. The Committee notes the information provided by the Government in its last report indicating that the Governing Body’s recommendations were forwarded to the Ministry of Energy and Mines and it trusts that the Government will provide a detailed reply in its next report on the action taken.

3. The Committee is addressing a request directly to the Government on other points.

[The Government is asked to report in detail in 2005.]

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee notes with interest the Government’s first report, and the documentation attached. It also refers to its observation, in which it requests the Government to provide further information in its next report on the application of the Convention in practice.

2. Article 1 of the Convention. The Committee notes that the peoples covered by the Convention are, in accordance with article 83 of the Constitution, the indigenous peoples, who are defined as nationalities of ancestral origin, and the black and Afro-Ecuadorian peoples. The Committee would be grateful if the Government would indicate the total number of indigenous persons in Ecuador, as well as the number of indigenous persons in each region and by people, according to the latest census carried out. Please also indicate whether self-identification as indigenous of the persons covered by the census was taken into account in determining their ethnic origin.

3. Articles 2 and 33. The Committee notes that the Council for the Development of the Nationalities and Peoples of Ecuador (CODENPE) is the link between the Government and indigenous nationalities and peoples and that this Council is registered with the Office of the President of the Republic and is entrusted with implementing indigenous policies, plans and programmes, and is also the Government counterpart in the Project for the Development of Indigenous and Black Peoples in Ecuador (PRODEPINE). Also noting an initiative to establish an indigenous fund, the Committee requests more detailed information on this initiative. It further notes that various ministries and government bodies have mandates dealing with indigenous affairs, such as the Indigenous Health Directorate of the Ministry of Health, and that these mandates are coordinated with the CODENPE. Please provide information on any change in relation to the entities established by the Government with responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and for guaranteeing respect for their integrity.

4. The Committee notes that PRODEPINE is a project financed by the World Bank up to 2002 for the development of indigenous and black peoples, and that its financing of US$50 million has been allocated exclusively to indigenous organizations. The Committee would be grateful if the Government would provide information on the objectives of PRODEPINE, the various programmes of which it is composed, the results achieved at the time of the conclusion of the project and whether and in what manner it will be continued. Please indicate how the peoples concerned have been associated in the development of the project with an indication, for example, of whether they were consulted and, if so, of the manner in which their proposals were taken into account.

5. The Committee notes articles 83 to 85 of the Constitution, which set forth the collective rights of indigenous and black or Afro-Ecuadorian peoples. It notes in particular article 84(13), under the terms of which these peoples have the right to determine priorities in plans and projects for the development and improvement of their economic and social conditions, and to appropriate financing from the State. Please indicate whether regulations have been issued under this article and machinery established for the implementation, in a coordinated and systematic manner, of the right to determine priorities in the situations referred to above. Please also provide a copy of any draft legislation or any legislation adopted for this purpose, in conformity with Article 33, paragraph 2(b), of the Convention.

6. Article 3. The Committee notes that indigenous peoples participated in the formulation of the National Human Rights Plan, 1998, to which more detailed reference will be made below.

7. Article 4. The Committee notes that article 84(1) to (6) of the Constitution covers in general terms the rights set out in paragraph 1 of this Article of the Convention. The Committee would nevertheless be grateful if the Government would provide information on the application in practice of the special measures adopted, as set out in the Convention, for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned. Noting the Operational Action Plan, 1999-2003, on the rights of indigenous nationalities and peoples in Ecuador (annexed to the National Human Rights Plan), the Committee notes with interest that it proposes the creation of a permanent committee on the rights of indigenous nationalities and peoples in Ecuador, which is to submit a document in the first quarter of 2003 reviewing current and/or completed action carried out under the above Plan. Please indicate whether this committee has been created and, if so, provide information on the activities that it has carried out, with a copy of the document referred to above and any other relevant documentation prepared by the committee.

8. Article 5. The Committee notes that article 84(1), (10) and (12) of the Constitution, sets forth the right of the peoples concerned to maintain, develop and strengthen their identity and traditions and their cultural and historical heritage. Please indicate the manner in which these rights are being applied in practice and whether the wishes of the peoples concerned are taken into account for this purpose.

9. Article 6. The Committee notes that consultations with indigenous communities are held essentially through CODENPE. Please provide information on the manner in which such consultations are held in practice and the subjects covered, for example, over the past two years. It also notes that, according to the report, in view of the recent entry into force of the Convention, appropriate procedures have still not been developed to determine the representativity and the manner in which indigenous peoples are to be consulted with regard to the mandate of the Convention, but that this will be put into practice in the future. The Committee would be grateful if the Government would provide information on the measures adopted, the progress achieved and the difficulties encountered in the application of this Article, which is fundamental for the proper implementation of the Convention.

10. In its last comment (1995) on the application of the Indigenous and Tribal Populations Convention, 1957 (No. 107), with reference to Article 5 of that Convention, the Committee noted that the Government’s report had been communicated to the Confederation of Indigenous Nationalities of Ecuador (CONAIE) and the Confederation of Indigenous Nationalities of the Ecuadorian Amazon (CONFENAIE) and expressed the hope that the Government would continue to communicate its subsequent reports to these organizations. Noting that the present report has not been sent to the principal indigenous organizations, the Committee would be grateful if the Government would indicate whether it will continue communicating its reports to the most representative indigenous organizations.

11. Article 7. The Committee notes that the action proposed under the Operational Action Plan, 1999-2003, includes the multiplication and strengthening of autonomous political and administrative units (action 1.1), the recognition of the political competence of the various forms of organization of indigenous nationalities (action 2.1), the formulation of a basic law on indigenous peoples and nationalities (action 2.4), the proposal to formulate a law on indigenous areas with a view to ensuring that indigenous nationalities and peoples benefit from the space required to ensure their own existence (action 3.1), and the enactment of laws protecting indigenous areas (action 3.2). Noting that the implementation of these measures would contribute significantly to the exercise of the right to decide their own priorities for the process of development, as required by the Convention, the Committee requests the Government to provide information on the implementation and results of the Plan of Action with regard to the above points.

12. The Committee hopes that the Government will provide information on the manner in which the PRODEPINE project and other projects take into account and apply the criteria set out in paragraphs 2 and 3 of this Article of the Convention. Please also indicate the manner in which the peoples covered by the Convention have been involved with measures to protect and preserve the environment of the territories they inhabit.

13. Articles 8 to 10. The Committee notes that, by virtue of article 191 of the Constitution, the authorities of indigenous peoples shall exercise functions relating to the administration of justice, applying their own standards and procedures for the settlement of internal disputes in accordance with their customs and customary law, provided that they are not contrary to the Constitution and the laws, and that the law shall make these functions compatible with those of the national judicial system. The Plan of Action also takes up this provision in action 2.6. Please provide information on the progress achieved in the implementation of this article of the Constitution, and also indicate the manner in which the authorities of the indigenous peoples which are to discharge these functions are determined. Noting that, by virtue of section 7(2) of the Code of Minors with regard to disputes relating to minors belonging to ethnic minorities or indigenous communities, their customs and traditions shall be observed and the traditional authorities of the community to which the minor belongs shall be consulted, the Committee requests the Government to provide examples of cases in which this provision has been applied.

14. Noting that penal law is the same for all, as are the channels of recourse for the observance of rights, the Committee hopes that the Government will adopt initiatives ensuring that the authorities and courts dealing with penal matters take into account the customs of the peoples concerned, in accordance with Article 9, paragraph 2, of the Convention.

15. Article 14. The Committee notes that the peoples concerned have the right, by virtue of article 84(2) of the Constitution, to maintain the imprescriptible ownership of community lands, which may not be alienated, seized or divided, except for the power of the State to declare them to be of public utility, and that by virtue of paragraph 3, they have the right to retain the ancestral possession of community lands and to obtain their adjudication free of charge in accordance with the law. With regard to the issue of declaring community lands of public utility, please provide information on cases which have occurred during the period covered by the report and on the procedure and manner in which the peoples concerned are taken into account in such cases.

16. The Committee notes the statement in the report that the peoples of the Amazon and the forest-dwelling peoples hold their land by virtue of ancestral possession, family ownership, private ownership, community ownership and latifundium. However, it notes that in the sierra, the most common form of land ownership is small estates under community, family and private ownership, as well as privately possessed lands. In its comments made in 1995 on the application of Convention No. 107, the Committee noted that 1,158,651 hectares had been adjudicated to 11,192 indigenous families. Noting that Executive Decrees Nos. 551 and 552 of 1999 adjudicated land free of charge to various communities, the Committee requests the Government to provide information on the total area of land to which title has been adjudicated by the end of the period covered by the next report. Noting that recognition of ancestral ownership can be obtained by application to the National Institute of Agrarian Development (INDA) or through the Ministry of Agriculture and Livestock (MAG), the Committee requests information on the procedures to be followed, the difference between the two procedures and whether the Government has taken initiatives during the period covered by the next report to demarcate and adjudicate title to the lands covered by article 84(2) and (3) of the Constitution. The Committee would be grateful if the Government would provide a map indicating the total area of lands demarcated and to which title has been adjudicated, as well as those where it has not yet been adjudicated. With regard to nomadic groups, it notes that according to the report the Tagaeri, the Taroname and other groups with family links to the Huaorani living to the south of the lands adjudicated to the Huaorani and the Yasuni Park may be considered nomadic and that Decree No. 552 recognizes their lands. Please indicate any other adjudication to the benefit of nomadic peoples. The Committee would be grateful if the Government would provide information on any exploitation of oil in the lands of the Sarayacu community and the manner in which effect is given in this case to Articles 14 and 15 of the Convention, in light of Articles 6 and 7.

17. In its last comment on the application of Convention No. 107, the Committee requested the Government to provide information on a communication from the Central Ecuatoriana de Organizaciones Clasistas (CEDOC) alleging that the provisions of the Peasant Communities Act were not compatible with other national laws, particularly with regard to the juridical status of peasant communities in relation to the possession, ownership and demarcation of communal lands. The Government has never replied to this observation. Please indicate whether the Peasant Communities Act is still in force and provide information on the other points raised in the communication.

18. Article 15. The Committee notes that, under the terms of article 84(4) of the Constitution, indigenous peoples have the right to share in the use, exploitation, administration and conservation of renewable natural resources situated in their lands. Please indicate the manner in which this right is exercised in practice, particularly during the period covered by the next report. The Committee also notes that Executive Decrees Nos. 551 and 552 of 29 January 1999 declared the area known as Cubayeno Imuya, an untouchable conservation area prohibited for any type of extractive activity, but that this area includes the Imuya oil exploration zone and the Zabalo I and Siona oil wells. Please provide a copy of these legislative texts and of the Environment Act, with an indication as to whether other declarations of this nature have been made during the period covered by the next report.

19. The Committee notes that article 84(5) of the Constitution sets forth the right of these peoples to be consulted concerning plans and programmes of exploration and exploitation of non-renewable resources found in their lands and which may affect their environment and culture, to share in the benefits from these projects where possible and to receive compensation for the socio-environmental damage caused. In this respect, the Committee requests the Government to keep it informed of the consultation machinery established in relation to the content of this article and whether exploration and exploitation of non-renewable resources in indigenous lands have been carried out during the period covered by the report, the manner in which consultations were held and their outcome. Please also indicate whether profits were made and/or compensation paid as a result of such activities.

20. Article 16. Noting that article 84(8) of the Constitution sets forth the right of indigenous persons not to be displaced as peoples from their lands, the Committee notes that, according to the report, up to now there have not been any cases of displacement, transferral or relocation of either indigenous or non-indigenous persons. In paragraph 28 of its last comment on Convention No. 107, the Committee requested the Government to provide information on the measures that it had adopted or planned to adopt relating to the possible relocation of the Cofanes, Siona and Secoya and on the activities undertaken to resolve land-related disputes between indigenous communities and non-indigenous settlers. Noting that, according to the report, Decrees Nos. 551 and 552 declared the area known as Cubayeno Imuya and the Zabalo I and Siona oil wells untouchable areas in which any type of extractive activity is prohibited, the Committee notes that, while it would appear that the Siona may have benefited, it is not clear whether these Decrees in practice cover the Cofanes, Siona and Secoya. It therefore repeats its request for information on the measures adopted in favour of these peoples and any other information relating to any transfers of individuals or groups of individuals belonging to these peoples.

21. Article 17. The Committee, noting that the legislation only recognizes forms of transmission set out in the Civil Code, which does not envisage the transmission procedures established by the peoples covered by the Convention, nevertheless notes with interest that indigenous peoples are preparing legislative proposals on communities and on self-defined peoples and nationalities recognizing and setting out in law traditional transmission procedures. The Committee hopes that the Government will be able to provide detailed information on this subject in its next report and that it will take the necessary measures to give effect to paragraph 1 of this Article.

22. Article 18. The Committee notes that the procedures and action against unauthorized intrusion on the lands of the peoples concerned are those which usually protect private property and are fully applicable in respect of the requirements of the Convention. Please provide information on these procedures, the sanctions prescribed and whether action has been taken against this type of intrusion during the period covered by the report, as well as any decisions and penalties resulting from such action.

23. Article 19. The Committee notes that the Act on agrarian development and the provisions relating to the organization and status of rural communities apply in general to the various agrarian programmes. It notes with interest that the Act on agrarian development provides that two members of the Executive Board of the INDA shall be representatives of national organizations of indigenous persons, montubios, Afro-Ecuadorian persons and persons living in rural areas in general (section 29.6) and that it covers the adjudication of lands to the persons concerned (section 38) and the training of indigenous persons and the development of ancestral techniques (sections 4 and 5), among other matters. According to the Government’s report, various agrarian programmes are carried out by institutions of different types, state bodies, non-governmental organizations and indigenous initiatives. Please indicate the main programmes that are under way and the measures envisaged to give effect to this Article in accordance with the indications contained in the report form.

24. Article 20. The Committee notes the information provided in the Government’s report to the effect that the labour legislation applies without distinction to all Ecuadorian nationals and that special measures have not been taken relating to the recruitment and conditions of employment of indigenous and Afro-Ecuadorian peoples. The Committee recalls that in its comments made in 2001 on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), it recalled that it had been noting for years that, despite the efforts to eliminate racial discrimination, it still exists in practice. It notes with concern that 80 per cent of the indigenous population in Ecuador is below the vulnerability line and that their consumption is insufficient to provide for their basic needs. The Committee therefore considers that the measures referred to in this Article are necessary and requests the Government to provide detailed information on the situations covered by points (a), (b), (c) and (d) ofparagraph 3 of Article 20 of the Convention, including in so far as possible, statistics on the categories of workers concerned. Please indicate, for example, the number of internal indigenous migrants, their conditions of work and the manner in which it is ensured that they are not exposed to pesticides or other toxic substances. With regard to paragraph 3(a), the Committee notes that action 15.1 of the Operational Plan of Action, 1999-2003, proposes the establishment of centres to receive and guide indigenous migrants which would operate in the major cities and, among other matters, would warn them of employment risks and provide information on employment, social security, housing and health. Please provide information on the measures adopted to give effect to action 15.1 of this Plan.

25. Article 20, paragraph 4. The Committee notes that labour inspection is carried out by the usual branches of the inspectorate within the context of their activities. In its observation of 2001 on the application of the Labour Inspection Convention, 1947 (No. 81), the Committee noted with interest that an awareness-raising campaign had been initiated on child labour with the support of the International Programme for the Elimination of Child Labour (IPEC), and that training programmes for labour inspectors on child labour are currently being commenced and arrangements are being made to obtain information in this respect. It also notes that in mid-September 2001, an overall training process was due to begin for labour inspectors and that the Government planned to adopt measures, with assistance from international cooperation, for the occupational specialization of labour inspectors. The Committee considers that to give effect to this provision of the Convention, the Government should include in the training of labour inspectors components to raise their awareness of the special vulnerability of indigenous peoples and Afro-Ecuadorian communities and the rights contained in this part of the Convention. It hopes that in its next report the Government will be able to provide information on the measures adopted in this respect.

26. Articles 21 to 23. The Committee notes the information of a general nature provided by the Government and requests it to provide more detailed information on this subject, including the plans and programmes that are under way and the number of persons and communities which have benefited from them. The Committee would also be grateful for information on the agrarian training plans for indigenous persons carried out under sections 4 and 5 of the Act on agrarian development.

27. Article 24. Noting that the rural social security scheme is of national coverage and includes indigenous peoples, the Committee requests the Government to provide information on the requirements for coverage by this scheme and the percentage of indigenous persons covered by it.

28. Article 25. The Committee notes that, according to the Government, there is no detailed information available on the number of health centres existing in regions inhabited by indigenous peoples, and the size of their medical, paramedical and nursing staff, which would make it possible to gain a better idea of the manner in which this Article is applied. It hopes that the Government will supply this information with its next report.

29. Articles 26 to 28. The Committee notes that article 84(11) of the Constitution sets forth the right of the peoples concerned to have access to quality education and to be provided with a system of bilingual intercultural education, and that by virtue of Executive Decree No. 203 of 1998, the National Directorate of Bilingual Intercultural Indigenous Education was created and made responsible for the administration of such education and the development of an appropriate curriculum. In this respect, the Committee notes the Bilingual Intercultural Education Model setting out the aims, objectives, strategies and proposed programmes, and that bilingual intercultural indigenous education started functioning 12 years ago in the country. It also notes with interest that the system was institutionalized on the basis of a proposal by CONAIE.

30. The practical information provided by the Government on education centres was taken from the Bilingual Intercultural Indigenous Education Statistical Yearbook for 1998, but does not offer a clear view of how it relates to the Convention. It indicates, for example, that there are 1,730 primary education centres and a total of 9,327 pupils, which does not appear to be proportionate. Please indicate, by region and by people, the literacy rates by age of the various indigenous peoples and of the children attending school, and up to which level, as well as the remaining information requested in the report form, with an indication, in so far as possible, of the literacy and school attendance rates of the non-indigenous population. Please also indicate the literacy and school attendance rates of the Afro-Ecuadorian population, with an indication of the educational level that they have attained.

31. Article 32. The Committee notes that the Awa and Espera peoples are located in the north of Ecuador and the south of Colombia and that the Shuar live on both sides of the frontier with Peru. In this respect, the Committee notes that, with a view to the completion of the pacification process between Ecuador and Peru, a frontier development agreement was concluded in 1999 and that family members who have been separated for decades may once again be reunited. Please provide information on the activities in the economic, social, cultural, spiritual and environmental fields envisaged by this agreement and any other agreement relating to indigenous peoples which may have been concluded with Colombia and Peru.

32. Part IV of the report form. Please state whether ordinary courts of law or other tribunals have issued decisions involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee notes with interest the Government’s first report, which it will examine in a direct request. It nevertheless notes that the report received refers almost exclusively to legislative texts, and it requests the Government to provide more complete information on the situation in practice in its next report.

2. It notes the report submitted to the Governing Body by a tripartite committee set up to examine a representation made by the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL) alleging non-observance by the Government of Ecuador of certain provisions of the Convention. This report was adopted by the Governing Body in November 2001 (document GB.282/14/2).

3. The representation alleged principally the failure to hold consultations through appropriate procedures, and particularly through the representative institutions of the Shuar people in relation to the granting of contracts by which the State delegated to individual contractors the right to carry out oil exploration and exploitation activities. The tripartite committee found, among other conclusions, that Articles 2, paragraphs 1 and 2(b), 6, 7 and 15, paragraph 2, of the Convention 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 exploration or exploitation of hydrocarbons, which may affect indigenous communities. Noting that the oil companies held consultations only with certain groups of the Shuar with a view to obtaining their consent to oil exploration, the tripartite committee also pointed out that the principle of representativity is a vital component of the obligation of consultation. The Governing Body therefore: (a) requested the Government to apply fully Article 15 of the Convention; that it establish prior consultations in cases of exploration and exploitation of hydrocarbons that could affect indigenous and tribal communities; and that it 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; and (b) urged 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" (when this case arose), to contact the representative institutions or organizations, including the Independent Federation of the Shuar People of Ecuador (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 community.

4. Further to the recommendations of the tripartite committee, the Committee of Experts requests the Government to report in detail on the effect given to the recommendations of the tripartite committee, and in particular on: (1) the measures taken or envisaged to remedy the situations that gave rise to the representation, taking into account the need to establish an effective mechanism for prior consultation with indigenous peoples, as provided in Articles 6 and 15 of the Convention, before undertaking or authorizing any programme for the exploration or exploitation of the resources pertaining to their lands; (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; and (3) the progress achieved in respect of consultations for 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 benefits from the oil-producing activities, as well as their perception of fair compensation for any damage caused by exploration and exploitation in the zone. The Committee regrets that, despite the fact that the Government provided a brief second report on the Convention, which was received in September 2002, it does not contain information on the recommendations approved by the Governing Body, and it requests the Government to provide this information in its next report.