Observation (CEACR) - adoptée 2013, publiée 103ème session CIT (2014)

Convention (n° 169) relative aux peuples indigènes et tribaux, 1989 - Equateur (Ratification: 1998)

Autre commentaire sur C169

Observation

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The Committee notes that the Government’s report due in 2013 was not received. It hopes that the Government will send a report sufficiently in advance to be examined in 2014 and that it will contain full information on the issues raised in this observation and in a direct request.

Communication from the International Organisation of Employers (IOE). The Committee recalls that in August 2012, the IOE submitted observations on the application in law and in practice of the consultation requirement established in Articles 6, 7, 15 and 16 of the Convention. The IOE’s observations were forwarded to the Government in September 2012. The IOE had raised the following issues: the identification of the representative institutions, the definition of indigenous territory and the lack of consensus of indigenous and tribal peoples regarding their internal processes, and the importance of the Committee to be aware of the consequences of these matters in terms of legal security, financial costs and certainty for both public and private investment. The IOE referred to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects the IOE observed that the erroneous application and interpretation of the requirement of prior consultation may lead to a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also stated that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government in its next report to make any comments it deems appropriate on the IOE’s observations. It asks the Government, in preparing its next report, to consult the social partners and indigenous organizations on the measures taken to give effect to the Convention (Parts VII and VIII of the report form).

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

Articles 6, 7 and 15. Consultation and petroleum activities. The Government stated previously that in its next report it would provide information on the new mechanisms for consultations with the indigenous and Afro-Ecuadorian peoples. It explained that when applications for petroleum concessions are processed in the Ministry of Mines and Petroleum, the indigenous communities that would be affected by the concession are consulted. The Committee noted the alternative report submitted by the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL) on the application of the Convention between 1999 and July 2006, asserting that there were serious problems linked to consultation and participation and petroleum activities. The alternative report referred to the serious problems faced by the Sarayaku people and other serious situations in Block 31 in the province of Orellana and Blocks 18, 23 and 24 in the Ecuadorian Amazon region. As regards Block 24, the Committee recalls that in November 2001 the Governing Body adopted the report of the tripartite committee that examined the representation made by the CEOSL under article 24 of the Constitution (GB.282/14/2, November 2001). The Committee invites the Government to report on the action taken on the Governing Body’s recommendations set out in paragraph 45 of document GB.282/14/2. It asks the Government to provide in its next report further information allowing an assessment of whether progress has been made in solving the problems referred to in the Governing Body’s recommendations concerning the Block 24 case that affected the Shuar people. Referring to its general observation of 2008, the Committee requests the Government to provide information on measures taken in the following areas:

(i) including the requirement of prior consultation in the legislation on 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.

Article 15. Natural resources. The Committee requests the Government to provide information on the legislative or administrative measures that have given effect to article 57 of the Constitution which recognizes and guarantees the rights of indigenous peoples and to provide examples of the provision’s application in practice. It also 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 Constitution, has been recognized as a result of consultations. Please provide information on the steps taken, in consultation with the peoples concerned, to ensure that full effect is given to the provisions of the Convention in the Cuyabeno-Imuya protected area.

Article 18. Protected areas and protection against intrusion. The Committee noted previously that there were problems regarding the effective observance of indigenous rights in protected areas. The Committee invites the Government to indicate in its next report the penalties established in the legislation in force, as required by Article 18 of the Convention, for unauthorized intrusion upon the lands of the peoples concerned or any unlawful use thereof by unauthorized persons. It invites the Government to supply information on the steps taken to prevent such infringements in the Tagaeri-Taromerani protected area and the other protected areas in the country.

In a direct request, among other matters, the Committee asks for information on the indigenous justice system, the land registry and conditions of employment of indigenous workers.

[The Government is asked to reply in detail to the present comments in 2014.]