Solicitud directa (CEACR) - Adopción: 2002, Publicación: 91ª reunión CIT (2003)

1. The Committee notes the report provided by the Government and its annexes.

2. Article 1 of the Convention. The Committee notes that, according to the report provided by the Government in 2001, a census of the indigenous population will be carried out in 2002 and will be coordinated jointly with the United Nations Development Programme (UNDP), the United Nations Childrens’ Fund (UNICEF), the Pan American Health Organization (PAHO) and the Paraguayan Indigenous Institute (INDI). It requests the Government to provide the results of the above census with its next report, including the distribution of the indigenous population by region on the corresponding municipalities with an indication, as previously requested by the Committee, of whether and in what manner self-identification as indigenous of the persons covered by the census was taken into account in determining the groups which fall within the scope of the Convention, as required by Article 1, paragraph 2. The Committee also notes that section 2 of the Bill governing the functioning of the entities responsible for national indigenous policy recognizes the principle of the self-identification of indigenous peoples.

3. Articles 2 and 33. Noting that the executive authority has submitted to the Legislature a Bill envisaging the replacement of the INDI, the Committee refers to its comments in its observation with regard to the application of Article 6 of the Convention prior to the adoption of any legislative or administrative measures which may directly affect the peoples concerned. It also recalls that, in accordance with Articles 2 and 33 of the Convention, governments 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 this effect, have to ensure the existence of agencies or other appropriate mechanisms. In this respect, the Committee notes that, according to the communication made by the National Federation of Workers (CNT), received in August 2001, the new entity which would replace INDI would have fewer powers than those currently entrusted to the INDI. Furthermore, according to this Bill, certain of the INDI’s current powers would be decentralized and entrusted to non-specialized institutions. For example, the legal personality of indigenous communities is currently administered by the INDI while, under the above Bill, their legal personality would be the responsibility of the governments. The current areas of competence of the INDI with regard to access to land would be similarly affected. These changes would appear to weaken the INDI and would significantly reduce the possibilities for the Government to develop a coordinated and systematic policy within the meaning of Article 2 of the Convention. The Committee hopes that, in addition to consulting the peoples concerned prior to the adoption of legislative or administrative measures which may involve the replacement of the INDI, the Government will ensure that such modifications are compatible with Articles 2 and 33 of the Convention, and it requests the Government to provide information in its next report on developments on this situation.

4. Noting that according to the report, the INDI has had to make do with a precarious budget to carry out its projects, the Committee recalls that, under the terms of Article 33, paragraph 1, of the Convention, the Government shall ensure that the agencies and mechanisms referred to in this Article have the means necessary for the proper fulfilment of the functions assigned to them and it hopes that the Government will provide such means to the INDI, or to the institution which replaces it, and that it will keep the Committee informed on this subject in its next report.

5. Article 3, paragraph 1. In its previous comments, the Committee noted the apparent discrimination in respect of wages and treatment based on the indigenous origin of workers in ranches in the interior of the country. In this connection, it requested the Government to provide detailed information on the wages paid to indigenous and non-indigenous workers in such ranches, and inquired as to whether the Ministry of Labour keeps a register of the wages paid to these workers. It notes that the report states that indigenous workers carry out occasional work, except for those based in certain ranches and in the peripheral areas of Mennonite communities, but that the Government does not reply to the Committee’s question. The Committee once again requests the Government to provide information on the remuneration of indigenous and non-indigenous workers based in ranches or by Mennonite communities. It also notes that the report does not contain a reply to its request for information on the number of indigenous rural workers in the country declared to the administrative authorities under section 183 of the Labour Code, and it once again requests the Government to provide information on this matter in its next report.

6. Article 3, paragraph 2. The Committee notes that, according to the report, indigenous persons do not submit complaints to the Ministry of the Interior, but to the INDI. Noting that the report does not provide information on such complaints, as it had requested in its previous direct request, the Committee hopes that the Government will indicate in its next report the number of complaints lodged for example over the past two years, the reasons for such complaints, their follow-up and the action taken by the Government to give effect to this provision of the Convention. If the INDI is replaced by another entity, please provide this information on the latter entity.

7. Article 5. The Government’s report reiterates the legislative provisions which give effect to this Article, but does not provide information on its application in practice. It adds that the Directorate of Planning and Projects of the INDI participates in projects carried out by the State, but does not provide practical information on these projects. The Committee once again requests practical information on any study which may have been carried out, with the cooperation of the peoples concerned, to evaluate the socio-cultural, spiritual and environmental impact of current projects or of projects which are under preparation.

8. Article 6. The Committee refers to the comments concerning INDI made in its observation. With regard to its previous comments on the manner in which consultations are held with indigenous peoples, the Committee notes that, according to the report, consultations were held in relation to the Sustainable Development Project for the Paraguayan Chaco (PRODECHACO) in 1993, but that the participation level was low due to the fact that many indigenous persons do not understand Guaraní. The Government also stated that it does not have information on the project for food assistance to indigenous primary schools, in which the INDI did not participate, and that it assumes that this project is the responsibility of the Ministry of Culture. The Committee notes that the information contained in the report is confined to isolated facts and does not give a general picture of the manner in which consultations are held with the peoples concerned, but that this fundamental Article appears not to be applied in full. The Committee, recalling that the spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all of its provisions are based, hopes that the Government will make efforts to apply this Article fully and systematically, will take the appropriate measures for its application in consultation with the peoples concerned and will keep the Committee informed of the efforts made and the progress achieved.

9. Article 7, paragraph 4. The Committee notes that, according to the report, the protection of the environment is carried out through the Environmental Superintendance and the Environmental Directorate of the Ministry of Agriculture and Livestock. It adds that in the case of projects undertaken by public institutions, the corresponding studies are usually undertaken, and that with regard to private projects, the INDI is not aware that such studies are carried out in areas inhabited by indigenous communities. The Committee recalls that, in the same way as the requirement of consultation, the principle of participation is a fundamental precept of the Convention. As such, occasional participation, the carrying out of studies only in certain cases for State projects, and the failure to undertake them when the projects are private, does not give full effect to this Article of the Convention. The Committee hopes that the Government will make the necessary efforts, in consultation with the peoples concerned, to give effect to this Article in practice and that it will supply detailed information on the law and practice in this respect, on the measures which have been adopted or are envisaged and on the progress achieved.

10. Articles 8 to 11. Noting sections 432 to 437 of the Penal Code, determining the procedure for acts liable to punishment in relation to indigenous peoples, the Committee notes that when the sentence involves a period of detention of not more than two years, any legal representative of a community of the ethnic group of the convicted person may submit to the judge an alternative to the execution of the penalty, thereby complying more effectively with the aims of the Constitution with regard to the cultural identity of the convicted person under conditions more favourable to the latter (section 437). Please provide copies of judicial decisions issued under this section. Please also indicate whether, in the case of sentences of detention in which the favourable treatment envisaged in section 437 has not been sought or granted, and in cases of detention of more than two years, indigenous persons are also compelled to work.

Land

11. Article 14. In its previous comments, the Committee noted that the Paraguayan Chaco has a surface of 24,695,000 hectares and that the officially recognized indigenous lands amount to only 1.8 per cent of the area, while in terms of population, 60 per cent of the total population of the Chaco is indigenous and only has access to less than 2 per cent of the territory of the region. Recalling that by virtue of this Article of the Convention, steps shall be taken 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 requested the Government to provide information on the manner in which it was proposed to give effect to this Article of the Convention, and particularly on the measures which have been taken or envisaged to safeguard the right of indigenous peoples to use lands not exclusively occupied by them. Noting that the Government has not replied to its request, the Committee urges the Government to supply this information in its next report. It hopes that the Government will indicate the peoples who use lands that are not exclusively occupied by them, and the measures that it is taking to safeguard their rights. For example, the Committee notes that, in a publication by the INDI annexed to the report, it is indicated that the Mbyá people, who are hunter gatherers, are in a territory that is not sufficient to ensure nutrition based on subsistence production and that only a few groups of the Mbyá hold title to land, despite the existence since 1982 of an Act which would permit the legalization of the land. It hopes that the Government will continue to supply information on this people and on others in similar situations.

12. The Committee notes, with reference to its previous comments, that the situation with regard to the lands of "Quebrachales de Puerto Colón", on which the Lengua and Sanapaná indigenous communities have claims, is progressing positively and that land transfers have continued. Please provide information on the progress achieved and, where appropriate, on any final agreement to resolve this claim. The Committee also notes that the report contains information on the land claims of the Fortuna, Laguna Pato, Santa Juanita, Riachito, Siete Horizontes, Aurora, Mbaracay and Totoviegosode indigenous communities, to which it referred in its previous comments. It notes that, while title has been granted to certain lands, the situation with regard to large areas of the lands in dispute remains to be resolved. For example, the Totoviegosode community was claiming 600,000 hectares of land and, according to the report, has recuperated a little more than 100,000 hectares. Please provide information on the stage reached by the procedures in the different cases in which indigenous communities are claiming lands, and particularly on the case of the 500,000 hectares which has still not been settled for the Totoviegosode community. Please also indicate whether the Government is considering, for example in this case in particular, the action envisaged in the Civil Code, namely acquisition and expropriation, and whether or not such action is appropriate to safeguard the right of indigenous communities to lands traditionally occupied by them, or through ownership or possession, where the latter are in dispute.

13.  The Committee has also referred on various occasions to the increase in the so-called "invasions by landless rural workers" of indigenous lands and noted that the courts had ordered illegal settlers in Naranjito, Torreskue and Ka’ajovai to leave the area. The Committee had asked whether these decisions had been applied, but notes that the report does not contain precise information on this matter and hopes that the Government will indicate clearly whether effect has been given to these judicial decisions. It also referred to the lands of the Fortuna community, which had lost the title to their lands to the benefit of the Compañía Industrial Paraguaya S.A. due to an administrative error by the Rural Welfare Institute (IBR), and it had urged the Government to provide information very soon on this situation. It regrets to note that, according to the Government, it was not possible to safeguard the lands under dispute for the Fortuna indigenous community by reason of an overlapping of ownership titles and the fact that the lands had been invaded by landless rural workers, leading to the abandonment of these lands by the indigenous community. The Committee recalls that Article 14, paragraph 3, provides that the rights of ownership and possession of the peoples concerned shall be recognized, which means that the protection afforded by the Convention is not limited to land to which title is held, but covers all the lands which have been traditionally occupied by indigenous peoples. It therefore hopes that the Government will take all the necessary measures to ensure that the Fortuna community is able to recuperate its lands and that it will keep the Committee informed on this matter. If this were to prove impossible in practice, please indicate the other measures adopted to compensate this community for the loss of its lands.

14. In paragraph 15 of its previous direct request, the Committee referred to invasions of lands and requested information on the penalties applied, and on whether they are adequate to stop such occupations. According to the report, in the event of invasions of indigenous lands, those who have invaded them have been removed. The Committee recalls that Article 14, paragraph 2, which places the obligation upon governments to guarantee effective protection of the rights of ownership and possession of indigenous peoples, is supplemented by Article 18, under the terms of which adequate penalties shall be established for any unauthorized intrusion, and governments shall take measures to prevent such offences. It hopes that the Government will take all the measures within its power to put an end to these intrusions and that it will examine, in consultation with the indigenous peoples, the appropriate measures to preserve their land rights, including the imposition of dissuasive sanctions, and that it will keep the Committee informed of the progress achieved in relation to this problem.

15. Article 15. The Committee would be grateful if the Government would indicate whether there have been cases of exploration or exploitation of natural resources in indigenous lands and the manner in which the indigenous peoples concerned have been consulted prior to any such exploration or exploitation. Please also indicate any agreements which have been concluded to ensure their participation in the benefits of any exploitation which may be undertaken.

Articles 15 and 16. The Committee had previously requested information on the transfers of indigenous communities displaced by the Itaipú and Yaciretá dams, any mechanisms in place for the payment of compensation for any loss or injury, the amount of compensation actually paid and the manner in which the peoples concerned were consulted before their transfer. It notes that the report contains information on the transfers of certain communities, but regrets that it does not reply to the other questions raised (mechanisms for the payment of compensation, the amount of compensation and consultations), nor does it provide detailed information which would allow the Committee to ascertain the manner in which these Articles of the Convention are applied.

17. Recalling that Article 16 places the obligation upon the State to provide relocated peoples with similar lands and compensation for any loss or injury, the Committee requests the Government to provide information on the quality and quantity of the lands at the disposal of the peoples concerned before and after their transfer, the compensation paid and the consultations held under the terms of this Article. With regard to its request for information on the case of the expulsion of 25 indigenous families of the Enxet ethnic group from a ranch owned by the Bischoff family, the Committee notes that the indigenous families were holding negotiations with the owners of the ranch concerning the purchase of land. Please continue to provide information on this matter.

18. Article 17. Noting that, according to the report, in no case can lands be transferred outside the community, the Committee requests the Government to keep it informed of any change in the legislation which may modify this situation.

19. Article 19. The Committee notes that, under the terms of section 18 of Act No. 904/81, families are to be provided with 20 hectares in the eastern region and 100 in the western region, but that section 11 of the draft Bill to which the CNT refers in its communication, would reduce by half (10 and 50 hectares) the amount of land for each family. Considering that, as it indicated in its previous comment, the occupation of land by indigenous peoples is not proportionate to their numbers, the Committee expresses concern at this draft Bill which, if it were adopted, would result in a deterioration of the situation, with the result that indigenous families would have a decreasing amount of land, and it urges the Government to re-examine the draft Bill in consultation with indigenous peoples, as provided for in the Convention. At the same time, the Committee notes that according to the report, the lands adjudicated to indigenous families are in fact greater in area than the 100 hectares guaranteed in Act No. 904/81.

20. Article 20. The Committee notes the statement in the report that the legislation does not contain special measures as required by this Article and that formal equality exists between indigenous and non-indigenous workers. Please provide information in this regard, such as studies and statistics on the situation of indigenous workers in relation to the various aspects of employment referred to in Article 20, paragraph 2. The Committee also once again requests information on the number, frequency and results of labour inspections carried out in indigenous areas, with particular reference to the Mennonite settlements.

21. Articles 24 and 25. The Committee notes that in August 1999 the Ministry of Labour, the Social Insurance Institute and members of the Chortzitzer Komitee examined the possibility of establishing a social security system for indigenous persons living in the area around the Mennonite settlement in central Chaco, and that meetings with indigenous communities in the area were planned to discuss this project. Please provide information on the project and on any proposal to improve the health services for indigenous persons.

22. Articles 26 to 31. The Committee notes the list of schools in which bilingual education is provided and would be grateful if the Government would provide other information, such as the languages taught, the number of persons benefiting from such education, as well as materials indicating the activities carried out, such as textbooks and programmes in the various languages in which such education is provided. Please also supply, in so far as possible, statistics on the literacy rates and the educational levels attained by indigenous peoples in comparison with the rest of the population.

23. Article 32. The Committee notes that the Department of Amambay (on the border with Brazil) is inhabited by the Paï Tavyterá indigenous people (of the Guaraní linguistic family), which have links with related peoples in the State of Matto Grosso Do Sul. The Paraguayan Chaco is inhabited by the Toba people, who also reside in Argentina. The report indicates that in border regions the governments are predisposed to facilitate activities by indigenous peoples, particularly at the cultural level. Please provide information on the measures adopted by the Government to facilitate contacts between indigenous peoples across borders in the economic, social, cultural, spiritual and environmental fields.