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Main situations concerning indigenous and tribal peoples which ILO supervision has dealt with
The ILO's Indigenous and Tribal Populations Convention, 1957 (No. 107), was ratified by 27 States. A number of these States have automatically denounced this Convention on ratification of the Indigenous and Tribal Peoples Convention, 1989 (No. 169). Though the situations in these States vary considerably, there are a number of common interlinked themes under which many of the situations ILO supervision has dealt with can be grouped.
Two inter-related themes have arisen repeatedly both in the comments of the Committee of Experts and in the reports of tripartite committees established to examine representations brought against States under article 24 of the ILO Constitution. These are the duty of States to consult with indigenous and tribal peoples when consideration is being given to legislative or administrative measures that affect them, and the same duty of consultation prior to the exploration or exploitation of natural resources on the lands they occupy or use (under Article 17 of Convention No. 169).
Indigenous and tribal peoples should be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community. The tripartite committee examining a representation on the application of Convention No. 169 by Peru found that, in view of the importance of collective ownership of land for certain indigenous and tribal peoples, decisions involving legislative or administrative measures that may affect the land ownership must be taken in consultation with them. When communally owned indigenous lands are divided and assigned to individuals or third parties, this often weakens the exercise of their rights by the community or people, and they may end up losing most, if not all, of the land (note 1).
A representation from the Bolivian Central of Workers alleged that the Government of Bolivia had granted logging concessions overlapping with indigenous territories. The Government was requested to apply the provisions of Article 15 of the Convention, which states that governments should consult with indigenous and tribal peoples prior to permitting any programmes for the exploration or exploitation of resources pertaining to their lands (note 2). It was also requested to conduct environmental, cultural, social and spiritual impact studies jointly with the peoples concerned, prior to authorizing the exploitation of natural resources.
Consultation has also been dealt with by the regular supervisory machinery in the context of a number of situations involving displacement for the purposes of development projects. In this regard, in addition to one representation concerning the lack of resolution of indigenous land claims arising from the displacement of indigenous communities due to the construction of a dam in the State of Oaxaca, Mexico (note 3), the Committee of Experts has noted other instances in which indigenous and tribal peoples have been, or are to be, displaced from their lands in order to make way for the construction of hydroelectric dams. These include the construction of a dam in the Alto Sinú region of Colombia (threatening to flood much of the territory occupied by the Emberá Katío community - note 4) , and the expropriation of 111,656 hectares of ancestral lands in the indigenous Rural Community of Santo Domingo de Olmos in Peru (by way of Supreme Decree No. 17-99-AG of 1999) in order to make way for a hydroelectric project (note 5). In each instance, one of the primary concerns of both the tripartite committee and the Committee of Experts has been the apparent lack or inadequacy of consultations with the indigenous peoples affected by these projects.
The issue of displacement has also arisen repeatedly within the context of Convention No. 107. For example, the Committee of Experts has made observations on the impact on indigenous peoples of the construction of four hydroelectric plants affecting Guaraní areas in the Vale do Ribiera in Brazil, and requested the Government to keep it informed of the situation regarding their impact on the surrounding communities (note 6). In India, the displacement, and process of resettlement and rehabilitation of thousands of tribal people due to the construction of the Sardar Sarovar Dam and Power Project, has been of ongoing interest to the Committee, which has expressed concern that the burden of such projects should not fall disproportionately on the tribal people inhabiting regions where these projects take place. Measures should be taken to ensure that they are provided with adequate protection.
An issue that has also arisen repeatedly in examining the implementation of Convention No. 169 has been discrimination against indigenous and tribal peoples, including women, in the area of labour, including forced labour, the most common form of which observed within the context of Conventions Nos. 107 and 169 has been debt bondage, through the "Aenganche" system in Latin America. The Committee of Experts has noted information suggesting practices of forced labour for the repayment of debts contracted in ranch shops in the purchase of basic foodstuffs and other staples at inflated prices in Paraguay. Within the context of Convention No. 107, the Committee of Experts has examined allegations of Ainhuman working conditions affecting a large number of Ascheduled tribe workers in Gujarat (India), recalling that under Article 15 of Convention No. 107, ratifying States must adopt special measures for workers belonging to these populations Aso long as they are not in a position to enjoy the protection granted by law to workers in general. In Brazil, the Committee of Experts has noted exploitative working conditions, including forced labour, of indigenous workers, including children, in the Mato Grosso do Sul region.
Note 1 - Report adopted by the Governing Body at its 271st Session (March 1999), regarding the representation made by the General Confederation of Workers of Peru, alleging non-observance of Convention No. 169 by Peru.
Note 2 - Report adopted by the Governing Body at its 271st Session (March 1999), regarding the representation made by the Bolivian Central of Workers, alleging non-observance of Convention No.169 by Bolivia.
Note 3 - Report adopted by the Governing Body at its 276th Session (November 1999), regarding the representation made by the Radical Trade Union of Metal and Associated Workers alleging non-observance of Convention No. 169 by Mexico
Note 4 - Report III(1A), International Labour Conference, 1999, p.567.
Note 5 - Report III(1A), International Labour Conference 2001, p. 612.
Note 6 - Report III(1A), International Labour Conference, 1999, p. 440.
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