Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

1. The Committee takes note of the Government’s detailed report, received shortly before the Committee of Experts began its work and containing the information requested in its previous comments. It also notes the various attachments containing information, inter alia, on legislation enacted, draft legislation and court decisions.

2. Follow-up to the representation of 1999. In March 1999, the Governing Body adopted the report of the committee set up to examine a representation made the Bolivian Central of Workers (COB) on the application of Convention No. 169 (Document GB.274/16/7). In that representation, the COB alleged that the National Forestry Superintendency had issued administrative decisions granting, without prior consultation, 27 renewable forestry concessions for a term of 40 years, which overlap with community lands of indigenous origin. These lands are undergoing a review in order to determine third-party entitlements within them. The abovementioned tripartite committee noted that in view of the fact that the measures to review title to the lands claimed, the expropriations and concessions for the exploitation of resources may directly affect the viability and interests of the indigenous peoples concerned, Article 15 of the Convention should be applied in conjunction with Articles 6 and 7, and recalled that by ratifying the Convention governments undertake to ensure that the indigenous communities concerned are consulted promptly and adequately on the extent and implications of exploration and exploitation activities, whether these are mining, oil or forestry activities. Furthermore, while noting that the lands with which the forestry concessions overlap had not yet been titled as community lands of origin, the abovementioned committee observed that it had not received any evidence indicating that such consultations, whether under Article 6(a) or Article 15(2), of the Convention had been carried out or whether provision had been made for the peoples concerned to participate wherever possible in the benefits of such activities.

3. It its last observation, the Committee requested detailed information on action taken on the recommendations made by the tripartite committee. With regard to consultation procedures, the Government indicates that section 8 of the Forestry Act establishes machinery for participation by citizens as well as guarantees of transparency giving all natural and legal persons the right to request information on the forestry system. As to the duration of the forestry concessions, the Government states that contracts concluded prior to the grant of title could be converted to concessions, though not for a term of 40 years but for the duration of the original contract. It also indicates that following unsuccessful applications for revocation and appeals, the indigenous organizations with outstanding land claims filed appeals to the Supreme Court of Justice pending grant of land titles which were dismissed as unproven. With regard to the review process, the Government indicates that its results may affect and bring about a reduction of forestry concessions. The Government also provides information on the forestry concessions that overlap with indigenous lands. The Committee notes that there is no new information on the main issues that gave rise to the representation. It requests the Government to provide detailed information in its next report on the action taken on the recommendations in the report adopted by the Governing Body on the representation of the COB.

4. Comments by the ICFTU - Consultation on oil drilling. The Committee also notes a communication of 1 September 2004, and the documents attached thereto, from the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention, forwarded to the Government on 13 September 2004, and the Government’s reply thereto. The ICFTU refers to the guaraní indigenous community of Tentayapi, which it describes as the community that most strongly defends its culture, values and way of life. The community is located in the Department of Chuquisaca, an area coveted for its oil reserves, and has legal title to an area covering 20,000 hectares. According to the ICFTU, an oil company (MAXUS-REPSOL) is seeking, without consulting or obtaining approval from the communities concerned, to explore and drill in their territory (Bloque Caipependi), on the strength of a few signatures which it obtained through deceit, the signatories being unable to read of understand what they were signing. The indigenous people have been highly active in opposing exploration and drilling and have even succeeded in getting the Chamber of Deputies to approve in July 2004 a bill to preserve Tentayapi (currently before the Senate). Finally, they alerted the Committee that in that same month, MAXUS-REPSOL started prospecting on community land.

5. The Committee notes the Government’s comments on the communication from the ICFTU and the two volumes of documents attached pertaining to studies carried out by MAXUS which include a document for public distribution together with a copy (six pages), a document recording delivery and receipt of the latter, a document for public consultation in Tentayapi, signed by six inhabitants of Tentayapi and a number of documents entitled "Private document - agreement for obtention of ownership, undertaking to compensate".

6. The Committee notes first that MAXUS held a briefing with the Tentayapi community and secondly, that the latter is not satisfied with the procedure used or the results, and took its claims to various national bodies prior to the abovementioned communication. Articles 6, 7 and 15 of the Convention, which lay down requirements for consultation, establish that consultation is not an information exercise but a process carried out for the purpose of reaching an agreement with the peoples affected, and lay down specific requirements where natural resources are involved. As the Governing Body noted in its report on another representation (GB.282/14/2, paragraph 38) "the concept of consulting the indigenous communities that could be affected by the exploration or exploitation of natural resources includes establishing a genuine dialogue between both parties characterized by communication and understanding, mutual respect, good faith and the sincere wish to reach a common accord. A simple information meeting cannot be considered as complying with the provisions of the Convention." The Committee further points out that the obligation to ensure that consultations are held in a manner consistent with the requirements established in the Convention is an obligation to be discharged by governments, not by private persons or companies.

7. In conclusion, the Committee hopes that the Government will promote real dialogue with the communities affected in the manner laid down in the Convention, and that it will order the suspension of actions that violate the interest of the guaraníindigenous community of Tentayapi and that relevant consultations will be held. It also asks the Government to keep the Committee informed of any developments in the situation.

8. Towards a culture of consultation. At a general level, the Committee observes that the events behind both the COB’s representation and the ICFTU’s communication arose from a failure to apply Articles 6, 7 and 15 of the Convention together, and that because there was no progress in this matter, the flaws in the consultations in the case of the forestry concessions were repeated in the oil case. The Committee hopes that the Government will take all necessary steps to establish consultation mechanisms that enable effect to be given to the provisions of the Convention.

9. The Committee notes that among the documents appended to its report, the Government included two bills, a "Draft Supreme Decree on Consultation and Participation of Indigenous Peoples of Origin - ILO Convention No. 169" and a "Draft Regulation on Mining Operations in Community Lands of Origin, and Indigenous Community and Communities of Origin. The Committee expresses the hope that these bills herald progress and its conviction that they warrant a process of consultation between the Government and the International Labour Office with the essential participation of the indigenous peoples.

10. The Committee also notes that the Government is working closely with the Office to implement effective measures to eradicate forced labour, the main victims of which are members of indigenous peoples. It further notes that in September 2004 the Government stated that the Forced Labour Convention, 1930 (No. 29), is in the process of being ratified by the National Congress. Moreover, the Government has been in contact with the Office and other bodies in the United Nations system with a view to setting up joint technical assistance programmes that will help it to develop coordinated and systematic action on indigenous issues (Article 2 of the Convention). The Committee hopes that in its next report the Government will provide information on progress made in this matter.

11. The Committee will carry out a detailed examination of the Government’s report in 2005 and requests the Government in its next report to provide information on developments in the situations that gave rise to the COB’s representation and the ICFTU’s communication.

[The Government is asked to reply in detail to the present comments in 2005.]