Demande directe (CEACR) - adoptée 1994, publiée 81ème session CIT (1994)

1. The Committee has noted with interest the Government's detailed first report on the Convention.

2. The Committee notes a number of indications in the materials before it that there is some conflict between the notion of respect for the principle of ethno-development and cultural diversity, and the tendency to assimilate traditional organizations and institutions into the dominant culture. The Committee would like to emphasize that the Convention recognizes the right of indigenous and tribal peoples to make their own decisions in this regard, and hopes that this principle will be taken into account systematically.

3. Article 1 of the Convention. The Committee notes that the National Registry is issuing identity cards, with priority given to indigenous communities and rural workers. The Committee requests the Government to keep it informed of this process, including details as to whether entry in the National Register as indigenous is distinct from being registered as a campesino (rural worker), and what criteria are applied in this respect.

4. Article 2. The Committee notes that the Sub-secretariat of Indigenous Affairs (formerly the Bolivian Indigenous Institute) of the Secretariat of Ethnic Affairs, Gender and Youth (SAE), is responsible for coordinating the formulation and implementation of development programmes among the different governmental and non-governmental entities involved in providing developmental assistance to indigenous communities. It also notes that there are some indigenous representatives in the SAE. Please provide information on the manner and modalities for indigenous participation in the SAE.

5. The Committee notes that technical and financial assistance is provided to indigenous communities for the implementation of their project proposals by both governmental and non-governmental organizations. Please provide information on any mechanisms in place for project selection, and any assistance provided to the indigenous communities in their preparation, conceptualization and presentation including any existing guidelines for allocation of the necessary resources.

6. Article 5. The Committee recalls the information provided under Convention No. 107 to the effect that religious sects are active in development programmes affecting indigenous communities and that they are outside governmental supervision, and requests the Government to provide information on whether these sects are required to obtain legal status and to register with the Ministry of Planning and Coordination under Legislative Decree No. 3464. Please also include information on any measures taken or contemplated to monitor and supervise the activities of the religious sects.

7. Article 6. The Committee recalls the joint ILO/Inter-American Indian Institute (III) report (1991) which contained a proposal for a draft law on indigenous policy, and which recommends the creation of a high-level inter-institutional technical committee to be composed of government and indigenous representatives. It requests the Government to keep it informed of any further steps it may have taken in this respect.

8. The Committee notes that the indigenous peoples are consulted through their representatives and traditional councils about any proposals or measures which may affect them, and that in this way their participation is ensured in the decision-making process. It requests the Government to provide information on the manner and modalities for taking account of any disagreements expressed by indigenous communities in its consultation procedures.

9. Article 7. The Committee notes that permanent consultative procedures with the peoples concerned are a fundamental pillar in the formulation, implementation and evaluation of the Government's development activities, with specific reference to the National Plan for the Defense and Development of Indigenous Peoples (PNDD). It hopes the Government will continue to provide further information on the participation of, and consultation with, the indigenous communities, including their organizations, in the preparation, implementation and evaluation of development projects which may affect them.

10. The Committee notes with interest the Environmental Act of 27 April 1992. It notes further that under section 25 of the Act, it is mandatory to carry out impact assessment studies prior to the implementation of any project which may affect indigenous communities, directly or indirectly. Please provide information on the applicable mechanisms to implement this provision of the Environmental Act and the results thereof.

11. Article 8. The Committee notes that the identification and consolidation of the indigenous territories and the official recognition of their traditional organizations and other forms of association are fundamental to the application of their customary laws, which are incorporated in the civil and penal codes. Please provide information on any legislative provisions or administrative procedures established or contemplated to take account of indigenous customary laws, including any mechanisms for conflict resolution between national law and customary law and practice.

12. Articles 9 and 10. The Committee notes the Government's statement that the judicial authorities have the discretion to take cognizance of indigenous customs when this is necessary. It also notes that they do not take account of the specific characteristics of indigenous persons as they are not familiar with indigenous customary practices, due to a lack of supervision by the state entities. The Committee requests the Government to provide further information on any measures taken or envisaged to facilitate judicial cognizance of indigenous customs and practices, especially in penal matters. Please also include copies of any relevant judicial decisions.

13. Article 11. The Committee notes the Government's statement that it is encountering difficulties in complying with the requirements of this Article but is considering implementing supervisory mechanisms to protect indigenous communities from instances of unpaid labour. In this connection, the Committee recalls its previous comments under Convention No. 107 regarding the system of "Prestación Vial" which provided for unpaid labour in road maintenance work; and of allegations of forced labour on plantations. It requests the Government to keep it informed of any measures adopted or contemplated to prohibit the exaction of such services.

14. Article 12. The Committee notes the judicial processes available for the protection of fundamental rights which can be initiated by the indigenous organizations recognized as public entities, or by the Secretariat of Ethnic Affairs. Please provide information on any legal proceedings which may have been filed in the national courts for the protection of indigenous rights.

15. Article 14. The Committee notes that the Government has made substantial efforts to identify the lands traditionally occupied by the indigenous peoples. However, it also notes that the limits of the landholdings of the settlers within the indigenous territories and areas have not yet been defined and that there are many lands which are registered in favour of local churches under the general legislation on colonization. In addition, information provided under Convention No. 107 indicates that a substantial part of the demarcation and consolidation process remains to be completed due to financial and climatic constraints. Please provide information about the progress achieved in this regard, including the allocation of land to other indigenous groups in the country.

16. The Committee notes the various state entities involved in the process of demarcation and consolidation of indigenous lands, including the National Council for Agrarian Reform (CNRA), the National Institute for Colonization (INC) and the Centre for Forest Development (CDF). It also notes that the SAE may request the cancellation or annulation of any consolidation or demarcation which it believes is not in the best interests of the people concerned (Supreme Decree No. 22503 of 11 May 1990). The Committee requests the Government to provide further information on the mechanisms in place for inter-institutional coordination and collaboration among the various state entities involved.

17. The Committee notes the legislative and administrative measures taken to recognize and protect the rights of ownership and possession of the indigenous peoples over their traditional lands. In this respect, it also notes that nomadic groups have access to any property, pending Government demarcation of lands for their use and possession. It hopes the Government will provide information on any procedural mechanisms for safeguarding the access of the Nahua, Toromona and other nomadic groups to lands on which they have had traditional resource rights but which are presently allocated to other indigenous peoples, including also whether this includes a requirement to settle.

18. The Committee notes that the Indigenous Territories are designated to be both "multi-ethnic and open" in terms of composition, as they are inhabited by diverse indigenous groups; and access, as other groups who are not inhabitants of the area use it for their traditional and subsistence activities. The Committee also notes that in addition to indigenous communities, there are settlers, including cattle farmers (ganaderos) and wood workers (madereros), who can also claim title to individual allotments within these territories under the provisions of existing legislation, namely the Agrarian Reform Act (Legislative Decree No. 03464 of 2 August 1953) and the Colonization Act (Legislative Decree No. 07765 of 30 July 1966). The Committee requests the Government to provide information on any procedural mechanisms adopted or contemplated to resolve conflicting land claims, including any necessary adjustments to non-exclusive usufruct rights, or "shared use". Please also include information on any measures taken or envisaged by the traditional indigenous councils to provide adequate protection to the inhabitants within their jurisdiction vis-à-vis their rights of ownership and possession.

19. The Committee notes that some of the indigenous areas fall within "specially protected zones", an environmental protection measure. Please provide information on whether the maintenance of the traditional activities of the indigenous peoples living within these areas, namely subsistence farming, shifting cultivation, hunting and gathering, is seen to be consistent with the concept of specially protected environmental zones.

20. Article 15. The Committee notes that the Environmental Act of 27 April 1992 guarantees the right of indigenous peoples to participate in the use, management and conservation of the renewable natural resources located on their lands (section 78). It also notes that the Government is required to create the mechanisms and processes to realize this right. Please indicate in the next report whether any regulations have been adopted under this Act.

21. The Committee notes Presidential Decree No. 23107 of 9 April 1992 establishing the Indigenous Forest Guard (GFI) which is to be composed of indigenous community members. It also notes that the GFI is to monitor and protect the rights of the indigenous peoples to the forest resources located on their lands and that it has the authority to impose sanctions for infringements. Please keep the Committee informed on the establishment and functioning of the GFI.

22. The Committee notes that the extractive activities of settlers, forestry workers, etc., have threatened the traditional activities of the indigenous communities living within these areas, e.g. hunting, fishing and gathering. Please indicate any procedural mechanisms in place, or contemplated, to facilitate consultation with indigenous communities, and their participation in the benefits of any extractive activities on their lands including the modalities for the payment of compensation for any damages sustained as a result; as well as any mechanisms to mitigate the negative effects of such activities on these communities.

23. Article 16. The Committee notes the statement in the report that indigenous communities are relocated only in the event of war or natural disasters, and that they have the right to return once the reason for the removal ceases to exist. It also notes that the Yuquí community had to be relocated due to the presence of illegal and unauthorized forest workers who threatened their lives, and that they have since been provided with alternative lands. The Committee requests the Government to provide information on any legal and procedural regulations governing relocation, including public inquiries and consultations with the peoples concerned. Please also provide information on how the right to return is guaranteed, with specific reference to the Yuquí community, and any compensation paid for loss or injury sustained as a result of the relocation. Finally, please continue to provide information on any further displacements which may take place.

24. Article 17. The Committee notes the information in the report that the procedures for transmission of land rights among the indigenous communities is according to the prevailing customs and traditions of each community, and that the distribution of lots and agricultural plots is at their discretion. It also notes the national laws governing land rights, including among others, the National Agrarian Reform Act and the General Colonization Act. Please provide information on any measures taken or contemplated to ensure harmony between the procedures of the indigenous peoples and the national legislation.

25. The Committee notes that the "Indigenous Territories" are granted to the indigenous communities as non-alienable property and that land rights cannot be transferred outside the community. Please provide information on any consultations carried out with the peoples concerned when adopting the decision to make all titles inalienable, and whether there are any provisions for making these territories alienable if so required.

26. Article 18. The Committee notes the Government is considering specific regulations to solve any problems which may arise as a result of unlawful entry on to indigenous lands. Please keep the Committee informed of any measures taken in this respect including any instances of implementation of section 49 of the Agrarian Reform Act which provides for restitution of usurped lands. See also under Article 16 above.

27. Article 19. The Committee recalls its previous comment under Convention No. 107 requesting details of the size and number of landholdings traditionally occupied by indigenous communities in accordance with the provisions of the applicable law. It hopes the Government will provide this information in its next report, including any measures taken or envisaged to provide access to technical, marketing and credit facilities to enable them to develop their lands. Please also include the modalities existing or to be adopted to evaluate their needs for further land requirements.

28. Article 20. The Committee notes the statement in the report that indigenous peoples are accorded the same treatment as other workers under the provisions of the General Labour Act of 29 May 1939. Please provide information on the present recruitment policies and general conditions of work and to what extent they cover indigenous workers, with specific reference to medical and social assistance, occupational safety and health, social security benefits and housing. Please also provide information on any protective measures for women and children. In this context the Committee notes the Government's statement to the Conference Committee in June 1993 that it is formulating a new draft General Labour Act with the technical assistance from the ILO. Please keep the Committee informed in this regard including any measures taken or envisaged to provide special safeguards to the indigenous workers in accordance with the measures detailed under this Article.

29. Articles 21 to 23. The Committee notes that a programme is being formulated, with the participation of indigenous organizations and representatives, to establish a training centre for indigenous peoples which will focus primarily on training bilingual teachers, but will also provide some technical training courses. It requests the Government to keep the Committee informed of any further developments in this regard.

30. Article 24. The Committee notes from the Government's report that indigenous peoples do not benefit from the national social security system, although it is considering measures to extend its coverage to include them. It requests the Government to keep it informed of the progress achieved in extending the coverage of the national social security system to include indigenous communities.

31. Article 25. The Committee notes that the Secretary of Health is compiling data about the health services in indigenous areas and requests the Government to communicate the results. It also recalls its previous comments under Convention No. 107 requesting further information on the specific activities of the Bolivian Traditional Medicine Society, and requests the Government to provide information in its next report. Please also include information on the modalities for cooperation of the people concerned in devising health programmes and plans of action, including the extent to which traditional preventive medicine is taken into account.

32. Articles 26 to 29. The Committee notes the measures taken by the Government to provide educational facilities to the indigenous peoples, and that it is devising a more culturally responsive educational programme within the framework of the ongoing restructuring of the national educational system. It also notes that the Government is encountering problems in providing educational facilities to the indigenous communities in some of the rural areas which have a low number of inhabitants. Please continue to provide information in this regard, as well as information on the Bilingual Intercultural Education Programme, including any measures taken or envisaged to encourage children to complete their basic secondary-school education, with particular emphasis on female students.

33. Article 32. The Committee notes the Government's efforts to facilitate cross-border contacts and cooperation, and that it has entered into a number of international and regional agreements to further this objective of which the Amazon Treaty of Cooperation of 3 June 1978 is significant. The Treaty recognizes the right of indigenous peoples to be involved in the formulation and execution of development programmes in the Amazon region. Please provide further information on the impact of multilateral and bilateral cooperation agreements on the indigenous communities.