Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

1. Article 1 of the Convention. The Committee notes the statistical data provided by the Government from the 2002 census carried out by the Directorate of Statistics, Surveys and Census, indicating the number of indigenous persons in the country by region and by ethnic group. It also notes that the Government has not modified the Indigenous Communities Charter, adopted by Act No. 904/81 for the reasons indicated in the observation, and thus, self-identification as a criterion for defining indigenous peoples as provided for by the Convention has not been incorporated. The Committee, recalling that under paragraph 2 of this Article of the Convention, self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply, requests the Government to incorporate this criterion in its next report and to give legislative expression to it in consultation with indigenous people.

2. Administration of justice. The Committee notes the Government’s indication that the Paraguayan Indigenous Institute (INDI) deals with complaints by indigenous persons irrespective of their subject; the information concerning the duties and powers of the offices of the Public Prosecutor and the Attorney-General relating to the defence of the rights of indigenous peoples, and the indication that the Supreme Court of Justice now has a list of specialists in indigenous customary law and experts on the various indigenous cultures. It also notes the existence of rulings of courts of law which have taken into account the customary law of indigenous persons. The Committee requests the Government to provide information on the procedure and follow-up of complaints submitted to the INDI, particularly those relating to the exaction of compulsory personal services (social, civil or military) prohibited by the National Constitution. It also requests the Government to provide in its next report copies of the rulings to which it refers, and particularly any ruling by the courts relating to the rights established by the Convention, especially those in which specialists and experts intervene and those which have given rise to the application of the possibility referred to in section 437 of the Penal Code, to which the Committee referred in its previous comments.

3. Article 7. Participation, development projects and environment. The Committee notes that the Government reiterates the information provided in its previous comments, adding that in cases of private investment projects, the environmental legislation establishes the obligation to carry out environmental impact studies and that the Secretariat of the Environment (SEAM) is the authority responsible for the application of the corresponding standards. The Committee notes from the Government’s report that the following development projects which directly affect the interests of various indigenous peoples in the country are being implemented: “Project for the Administration of Natural Resources”; “Project of Support for Production by Indigenous Communities”; “Integrated Management Project and Master Plan for the Cuenca del Rio Pilcomayo” (PRODECHACO); “Alto Paraná” and “Itapúa Norte”. The Committee recalls that Article 7 of the Convention provides that “the peoples concerned shall have the right to decide their own priorities for the process of development”; that such peoples “shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly”; and that “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 Committee requests the Government to indicate the manner in which it is made possible for indigenous communities themselves to decide their own priorities for the process of development and to indicate whether indigenous peoples have been able to participate in establishing their priorities in the projects referred to and the manner in which they have done so. It also requests the Government to provide copies of any studies which have been carried out to assess the social, spiritual, cultural and environmental impact on indigenous peoples of such activities, with an indication of their participation in such studies.

Land

4. Articles 14, paragraphs 1 and 2, and 19. The Committee notes the Government’s indication that in all cases indigenous peoples hold collective title over lands and that there is no significant indigenous group which uses lands not exclusively occupied by them. It also notes the procedure envisaged in Act No. 904 to regularize lands occupied by indigenous communities, both for settlements on public lands and settlements on private land, including the case of groups separated from their communities or which are dispersed, and the machinery envisaged to guarantee possession of occupied lands. It further notes the Government’s indication that in determining the lands claimed, account is taken of the free and explicit request by indigenous peoples, as well as the corresponding anthropological studies, and that Acts Nos. 1372/88 and 43/89, establishing a procedure for the regularization of settlements of indigenous communities, apply to ensuring effective protection of the rights of indigenous peoples, and that the procedures have to be initiated with the INDI and the National Rural Development and Land Institute (INDERT). Noting that the land area to be adjudicated per indigenous family continues to be 20 hectares in the eastern region and 100 hectares in the western region, the Committee requests the Government to provide information on specific cases in which the various solutions envisaged by the above legislation have been applied, and on the measures adopted or envisaged to resolve cases in which the land occupied is insufficient in relation to the number of indigenous claims. Please provide information on the percentage of indigenous persons who have benefited from these procedures, and the land area concerned in relation to the total area of lands occupied or claimed by indigenous persons, particularly with regard to the situation of indigenous persons of the Chaco and the Mbyá people, with an indication of whether, in addition to the law, there is a programme promoted by the Government to resolve the regularization of lands occupied or claimed by indigenous persons.

5. Article 14, paragraph 3. Adequate procedures to resolve land claims by indigenous peoples.  The Committee notes the Government’s indication that there are no specific procedures to resolve land claims by the peoples concerned, but that the rules established by the Civil Code are applied. It further notes that the Government has not provided information on the land claims of the indigenous communities of Lengua y Sanapaná, Fortuna, Laguna Pato, Santa Juanita, Riachito, Siete Horizontes, Aurora, Mbaracay and Totoviegosode, to which it referred in its previous comments. The Government nevertheless refers to the case of the indigenous community of Yakie Axa, which had to have recourse to the Inter-American Court of Human Rights in view of the failure of the measures adopted at the national level, firstly so that the Government could purchase directly the lands claimed with a view to their restitution to the community concerned, and then to achieve their expropriation through the Chamber of Deputies. The Committee notes that the existing procedures relating to ownership do not appear to have responded in a satisfactory manner to resolving the land claims made by the peoples concerned, and the provisions of the Civil Code do not respond in certain respects to the rights established by the Convention. The Committee, therefore, invites the Government to consider establishing appropriate procedures in the context of the national legal system, in accordance with Article 14, paragraph 3, of the Convention and to provide information in this regard. Please provide information on the action taken in practice in relation to the cases referred to and regarding the indigenous communities Yakie Axa y Aché de Kuetuvy.

6. Articles 17, paragraph 3, and 18. With regard to the increase in what the Government terms “invasions by landless rural inhabitants” of indigenous lands, the Committee notes that there are no specific legal provisions to resolve the problem and that the Commission on Human Rights and Indigenous Peoples of the National Parliament has not yet undertaken a study of this situation, with the result that the provisions set out in the Civil Code and Penal Code have to be applied to such situations and the INDERT is adopting measures to relocate persons affected by the agrarian reform on appropriate lands so as to diminish the pressure on indigenous lands. The Committee notes that the Government has not provided the information requested on the impact of the court orders requiring the illegal settlers in Naranjito, Torreskue and Ka’ajovai to leave the area. The Committee hopes that the Government will adopt the necessary legislative and administrative measures, in consultation with indigenous peoples, to bring an end to these intrusions and that it will provide information on this subject in its next report.

7. Article 16. The Committee notes the Government’s indication that it does not have precise information on cases of individuals or groups of indigenous persons who have been relocated from their habitual territories, but that unofficial information exists concerning the relocation of indigenous communities displaced by the Itaipú and Yaciretá dams. In previous comments the Committee noted information in the Government’s report on relocations of certain indigenous communities. The Committee hopes that in its next report the Government will be in a position to provide the information requested regarding such cases, with an indication of the consultations held with the people’s concerned before their relocation, on the quality and quantity of lands available to them before and after the relocation and on the implementation of any mechanisms for the payment of compensation for the damage caused, with particular reference to the indigenous communities displaced by the Itaipú and Yaciretá dams.

Natural resources

8. Article 15. With regard to any exploration or exploitation of natural resources in indigenous lands, the Committee notes the Government’s indication that hydrocarbons and minerals are the property of the State and that no indigenous community has such resources in its subsoil. However, it indicates that applications have been submitted to the INDI by exploration companies seeking information on the existence of indigenous communities in certain areas of the country. It adds that the most common activity is the exploitation of forestry resources undertaken by forestry companies with the agreement of the leaders of indigenous communities. Furthermore, the Government states that resolution No. 02/003 of the INDI explicitly prohibits this type of exploitation in all indigenous communities and settlements in the country in accordance with the legal provisions respecting ecological offences, and that the authority which intervenes to prosecute and penalize such offences is the Office of the Environmental Prosecutor, at the request of the INDI. The Committee recalls that Article 15, paragraph 1, provides that it is the obligation of the State to ensure that the rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded, and that these rights include the right of these peoples to participate in the use, management and conservation of these resources. The Committee, therefore, requests the Government to provide detailed information on any measures adopted or envisaged to ensure the application of this provision of the Convention, and on specific cases in which effect has been given to the resolution of the INDI referred to above through the Office of the Environmental Prosecutor, and the results achieved. It further requests the Government to keep it informed of any requests for information made by mining companies affecting the lands traditionally occupied by indigenous persons, taking into account the scope of the term “lands” within the meaning of Article 13, paragraph 2, of the Convention.

9. Articles 24 and 25 (social security and health) and 26 to 31 (education and means of communication). The Committee notes the information provided by the Government in relation to points 21 and 22 of its previous direct request and will continue to monitor compliance with the provisions of the Convention through the information provided by the Government in future reports. In particular, the Committee requests the Government to provide statistical data, in so far as possible, on the literacy and school attendance rates achieved for indigenous populations in comparison with the rest of the population.

10. Comments of the National Union of Workers (CNT). The Committee notes that the Government has not provided information on the comments made by the CNT in its communication dated 19 November 2004. Please provide such information in the next report.