HUMAN RIGHTS ISSUES OF SPECIAL RELEVANCE TO THE INDIGENOUS INHABITANTS OF THE COUNTRY
Although the figures available vary widely, the percentage of the population described as indigenous is most frequently cited as between 35 and 45%.(1) The indigenous peoples of Ecuador are situated throughout the country in the northern coastal areas, the Sierra and in the Oriente. Ecuador is a major indigenous population center in Latin America.(2)
The indigenous peoples of Ecuador have significantly redefined their relationship with the structures of national government and with the non-indigenous population over the past several decades. The indigenous population has created a network of local and regional representative organizations (CONFENIAE, ECUARUNARI and COICE), which in turn belong to the national coordinating body CONAIE, which works with its counterparts to promote indigenous rights.
Among its long term goals, CONAIE has vigorously pursued official recognition of the indigenous population of Ecuador. In this regard, CONAIE has sought that the Constitution be amended to recognize Ecuador as a plurinational, plurilingual and pluriethnic state. While the 1995 amendments to the Constitution did not include the term plurinational, they did modify the definition of the State so that Ecuador is now recognized as "sovereign, democratic, unitary, decentralized, pluricultural and multiethnic." This is the first time Constitutional recognition has been accorded to the different ethnic peoples and cultures of Ecuador.(3) The Constitution sets forth that Spanish is the official language of Ecuador, and the language of intercultural relations. "Quichua and the other indigenous languages are recognized within their respective areas of use and form part of the national culture."(4)
In its March 19, 1997 submission of observations, the Government indicated that its position with respect to the rights of indigenous peoples is clear. The Government characterized its action in this regard as endeavoring to equilibrate the diverse interests of the indigenous and other sectors of the population, and described the principal demands of the indigenous peoples of the country as recognition of: their existence as peoples, their native rights, the plural quality of the State, their rights to their land and territory, and their own juridical systems for the solution of conflicts. The Government "considers that the ethnic minorities and indigenous groups that form part of the Ecuadorean nationality have a right to their own culture and land," and that the distinct cultural systems of these peoples have given Ecuadorean society a multicultural character. The Government noted the creation of the National Secretariat for Indigenous and Ethnic Minority Affairs in 1994 as an important step in defining the policies of the State with respect to its indigenous peoples.
Pursuant to reforms which allowed independent candidates to run for elected office, indigenous organizations undertook their first coordinated involvement in local and national politics during the 1996 elections. Indigenous and other groups, including labor unions, joined to form the political movement known as Pachakutik, which won 64 seats at the local and national levels. Pachakutik candidates won seats in the 82 member Congress, with CONAIE President, attorney Luis Macas, elected as one of twelve national deputies.
The indigenous peoples of the country face a number of serious obstacles to obtaining the full enjoyment of their rights and freedoms under the American Convention. Significant segments of the indigenous population suffer the effects of pervasive poverty, and little social spending is directed toward this sector.(5) Indigenous individuals are subjected to discrimination, from both the public and private sectors. They experience obstacles in seeking to pursue their traditional relationship with the lands and resources that have supported them for thousands of years, and in seeking to practice and preserve their own cultures. One leader stated to the Commission that, although their peoples had inhabited these lands for thousands of years, the imposition of a European language and legal practices, without concomitant respect for their own culture and traditions, made indigenous Ecuadoreans feel like foreigners in their own land.
The Right to Equal Protection and to be Free from Discrimination
The American Convention protects the rights of minorities and prohibits minority discrimination. The American Convention, pursuant to the terms of Article 24, requires that all persons subject to the jurisdiction of a State Party be regarded as equal before the law, and be accorded equal protection of the law. This commitment is reinforced by the obligation set forth in Article 1.1 of the Convention to respect and ensure the guarantees set forth "without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition." The Constitution of Ecuador establishes that the State condemns all forms of colonialism and neocolonialism, as well as discrimination and racial segregation.
A frequent complaint concerns the treatment of indigenous inhabitants within the judicial system. Indigenous representatives indicated that legal processes fail to respect or take into account indigenous legal systems and traditions. Representatives complained that processes against indigenous defendants were conducted in Spanish, and that translation was not provided for those who understood only their native language. Article 8 of the American Convention states that "the right of an accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal" is a minimum guarantee. The Commission expects that the recognition accorded to indigenous languages in their areas of use through the recent amendments to the Constitution will ensure that translation between Spanish and the indigenous language of the defendant is available in every case where it is required.
The right to participate in the public life of one's country is established by Article 23 of the American Convention, which provides that every citizen shall enjoy the "right to take part in the conduct of public affairs, directly or through freely chosen representatives." This guarantee includes the right to be elected and "to have access, under general conditions of equality, to the public service" of one's country. The results of the 1996 elections in Ecuador demonstrate that the indigenous peoples of the country are beginning to be able to exercise this right. However, it must be noted that, notwithstanding this advance, there are few indigenous Ecuadoreans serving in decision-making positions within the Executive or Judiciary, or within State agencies.
Land, Resources and Property Rights
Article 21 of the American Convention recognizes generally that: "Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society." In light of Article 29 of the American Convention, which stipulates that the Convention may not be interpreted so as to restrict the enjoyment of any right recognized under domestic law, or another convention to which the State is party, it must be noted that the right of indigenous peoples to collectively or individually own the land they have traditionally occupied is recognized in Article 11 of International Labor Organization (ILO) Convention 107, to which Ecuador is a party.(6)
The right to own property in all of its forms is recognized in Article 48 of the Constitution of Ecuador. The right to own land, specifically "land in production," is guaranteed by Article 51. The monopolization of land is prohibited, as is the "latifundio" (system of dividing land into large estates). The Constitution provides that the structure of property rights in the rural sector is to have as its objective economic development, the raising of the standard of living, and the redistribution of wealth. The "colonization" or settlement of land is to be regulated in order to improve conditions of life for the campesino sector, to protect natural resources and the environment, and to strengthen the country's "living border."
As noted by the Government in its March 19, 1997 submission of observations, the national process of agrarian reform terminated after some 30 years, and the agency charged with its implementation, the Ecuadorean Institute of Agrarian Reform and Colonization (IERAC), was replaced by the National Institute of Agricultural Development (INDA). The Government stated that the processes of "directed colonization," and the consideration of large tracts of the Amazon basin as "tierras baldías" may be considered superseded. The policy of land distribution, the Government observed, is now based on the free market principles of the economic system.
The right to own real property is limited by, inter alia: legal provisions which control the characterization of and granting of title; the broader approach to development of rural areas which accords priority to settlement and to the full use of the land; and the State's ownership of and authority to exploit subsurface minerals.(7) These limitations prompt special consideration as they affect the ability of indigenous peoples to enjoy their rights under the American Convention. Indigenous representatives have informed the Commission that struggles over land have provoked ongoing tension and conflict between competing claimants in regions of the Sierra, including Yuracruz, Huaycopungo in Imbabura Province, Tunshi and Chiquicagua in Chimborazo Province, and in Tunguahua, as well as in the Oriente.
The Civil Code establishes that registered title is required to prove ownership of land, and any land which is not registered is deemed to belong to the State. The system of attributing title provides for the communal holding of real property; however, indigenous leaders complain of encountering consistent barriers to gaining communal title. They complain, for example, that extant legal provisions do not fully recognize the common organizational units of indigenous peoples, or their traditional methods of cultivation.
Communities and cooperatives are recognized in Article 46(3) of the Constitution as one of the basic sectors of the economy, and such groups are authorized to hold property communally. Indigenous communal ownership of land is specifically recognized under the Law of "Comunas." However, while the Comuna (administered by an elected "cabildo") is very popular in the Highlands, the Amazonian indigenous peoples utilize other forms of internal administration.(8) Additionally, the Law of Agrarian Development permits the State to expropriate land that has been left fallow for more than two years. This requirement is inconsistent with indigenous land use systems in some regions of the country. For example, Amazonian forest-dwelling indigenous peoples clear and cultivate small gardens on a rotating basis to maximize the productivity of the shallow top soil. Their methods of managing and harvesting the resources of the forest are consistent with their needs, and with the characteristics of the forest topsoil, which is shallow and poorly suited for the intensive cultivation models contemplated in the Law of Agrarian Development.
The Agrarian Development Law, which entered into force in August of 1994,(9) met certain concerns expressed by the indigenous sector of the population, while giving rise to others.(10) The law provides for more representation of affected social sectors in the process of implementing agrarian development policy.(11) The law also recognizes the right of indigenous peoples to continue their traditional forms of life, including inhabiting and managing their traditional forest areas. Despite the protest of many indigenous representatives, however, the new law provides for the division or alienation of communally held indigenous land when two thirds of the communal assembly so decides. This provision has been characterized as placing the legalization and maintenance of indigenous territory at risk.(12)
Another limitation on the ability of indigenous peoples to obtain title to their traditional lands is the provision of the Forestry Law which specifies that all land within the borders of legally designated natural reserves must be appropriated by or reverted back to the State. The law does not take into account that a number of these protected areas include lands traditionally inhabited by and of special importance to indigenous peoples.(13) In at least one instance (discussed below), the Government entered into a special arrangement that accorded a segment of the Cofan people rights to use and control a portion of the Cuyabeno reserve.
In its observations on the present report, the Government noted that a number of pertinent proposals for legal reform were under study, including to amend the Law of Colonization to revise the adjudication of tierras baldías, to better harmonize the use of the soil and resources, to consider the ancestral settlement of indigenous peoples and avoid interethnic conflict. Proposals were under consideration to reform the Law of Agricultural Promotion to benefit poor rural indigenous inhabitants, to revise the Water Law in favor of indigenous communities, and to revise the Law of Forestry to assign the administration, management and conservation of certain protected areas to the indigenous peoples of the area. Revisions to the Law of Comunas were also under consideration to make the law more consistent with the structures of indigenous communities. Moreover, the Government reported that plans were under study to eliminate economic activities in protected areas and to examine concessions granted in areas of high ecological value.
Respect for Indigenous Expression, Religion and Culture
Certain individual rights guaranteed by the American Convention on Human Rights must be enjoyed in community with others, as is the case with the rights to freedom of expression, religion, association and assembly. The right to freedom of expression, for example, cannot be fully realized by an individual in isolation; rather, he or she must be able to share ideas with others to fully enjoy this right. The ability of the individual to realize his or her right both contributes to and is contingent upon the ability of individuals to act as a group.(14) For indigenous peoples, the free exercise of such rights is essential to the enjoyment and perpetuation of their culture.
In construing these rights in relation to indigenous peoples, account must also be taken of the stipulation set forth in the American Convention that its provisions be interpreted so as not to restrict other rights and freedoms accorded under domestic law or other international instruments by which the state concerned is bound. Ecuador is Party to a number of international conventions which guarantee certain protections for ethnic and racial groups, including the ICCPR. International law, as expressed in Article 27 of the ICCPR, recognizes the right of ethnic groups to protection of "all those the characteristics which are necessary for the preservation of their cultural identity."(15) This Article provides that, in states where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall enjoy the right, in community with other members of the group, to enjoy their own culture, practice their own religion, and use their own language.(16) The International Convention on the Rights of the Child, to which Ecuador is a Party, expressly recognizes these same rights for children. Ecuador is also Party to the ICESCR, which recognizes the right of each person to take part in the cultural life of the community, and has ratified the Additional Protocol to the American Convention on Economic, Social and Cultural Rights, which establishes similar guarantees, but has yet to enter into effect.
Such rights, protected in the case of individuals under the American Convention, or in the case of minority groups under the ICCPR:
depend on ... the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with other members of the group.(17)
As noted by the Commission, the OAS, for its part:
has established, as an action of priority for the member states, the preservation and strengthening of the cultural heritage of these ethnic groups and the struggle against discrimination that invalidates their members' potential as human beings through the destruction of their cultural identity and individuality as indigenous peoples.(18)
The indigenous peoples of Ecuador speak at least 23 different languages, at least nine of which are reportedly spoken by more than 10,000 individuals each.(19) Most common is Quichua, which is spoken throughout the country. In the Oriente, each of the seven principal peoples speaks their own language. Pursuant to the Constitution, indigenous languages are recognized in the areas where they are used, and form part of the national culture of Ecuador. More specifically, Article 27 of the Constitution establishes that in zones where the population is predominantly indigenous, Quichua or the other indigenous language spoken shall be used as the principal language of education, and Spanish will be used as the language of intercultural relations.
In certain sectors of Ecuador, particularly in the Sierra region, comprehensive programs of bilingual education have been developed and implemented.(20) In other areas, such as in the Amazon region, bilingual education is still in its initial stages of development. The Commission delegation which travelled to the interior was informed that few schools there offer bilingual education, and that there are few learning materials available to facilitate bilingual and bicultural learning. For example, Huao children are generally instructed in Spanish and are educated almost exclusively within the framework of the national curricula. Information gathered just prior to the Commission's visit indicated that, of the two dozen teachers working with Huaorani children, most were Mestizo or Quichua, and few were able to speak Huao. Thus, Huaorani children are abruptly separated from their native language and culture for the hours they spend in school each week. The lack of Huaorani teachers has been identified as an important barrier to improving the responsiveness of education in the Huaorani schools.
The Ministry of Education and Culture has indicated a commitment to meeting the educational needs of marginalized groups, including indigenous communities, with respect given to their cultural identity.(21) However, efforts to meet this commitment appear to have been limited by insufficient human and material resources. The Government indicated in its observations on the present report that the system of bilingual education had been strengthened, with the participation of indigenous organizations.
Respect for indigenous culture is also implicated in the recognition or non-recognition of forms of internal organization. This question was briefly referred to in the preceding section with respect to the legal recognition granted to "comunas" but the non-recognition of other forms of communal organization.
Indigenous community life, and therefore the viability of indigenous culture, depends upon the vitality of the group's social organization and, in many instances, the active implementation of local customary law. ...[N]on-recognition ... by the state legal system and public administration ... contributes to the weakening and eventual disappearance of indigenous cultures.(22)
The "prevention of discrimination, on the one hand, and the implementation of special measures to protect minorities, on the other, are merely two aspects of the same problem: that of fully ensuring equal rights to all persons."(23) These protections also serve to establish the essential precondition for the enjoyment of other rights:
[t]he effective implementation of the right of persons belonging to ethnic, religious and linguistic minorities to enjoy their own culture, to profess and practice their own religion and to use their own language requires, as an absolute precondition, that the principles of equality and non-discrimination be firmly established in the society in which those persons live.(24)
The Impact of Development Activities on the Human Rights and Physical and Cultural Survival of the Indigenous Peoples of the Oriente
Certain indigenous peoples maintain special ties with their traditional lands, and a close dependance upon the natural resources provided therein -- respect for which is essential to their physical and cultural survival.(25) This connection between indigenous territory and indigenous survival may be illustrated with reference to the human rights situation of the indigenous peoples of the Amazon region of Ecuador.
As noted above, the Commission's examination of the human rights situation in the Oriente was prompted by the filing of a petition on behalf of the Huaorani people which alleged them to be under the imminent threat of profound human rights violations due to planned oil exploitation activities within their traditional lands.(26) The petition indicated that the Huaorani are estimated to number between 1400 to 1500 individuals, and are often referred to as the least assimilated of the indigenous peoples of Ecuador. They historically occupied roughly 2 million hectares of land between the Napo and Curaray Rivers. Largely as the result of the efforts of missionaries, during the 1950's most of the Huaorani were centralized in a small area on the western edge of their traditional lands. This area, comprising some 66,570 hectares, was officially designated a "protection zone" in 1959, and a Huaorani Protectorate in 1983. An additional land grant of 612,560 hectares was accorded in 1990.(27) The area slated for development, designated as Block 16, is within these titled lands.
At the time of the petition, experimental wells had been drilled, and oil discovered in areas throughout Block 16. Initial development plans, as reported by the petitioners, called for the construction of approximately 120 wells clustered in two sectors, an estimated 90 miles of roads, a pipeline to connect the production facilities to the existing pipeline structure, an aircraft landing strip, field offices, quarters to house approximately 300 permanent staff, an electrical generating plant, water processing plant and other facilities. CONFENIAE asserted that the activities incident to development of the Block would irreparably harm the Huaorani, threatening their physical and cultural survival, in violation of the protections accorded by the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man.(28)
The general claims lodged concerning the Huaorani are not unique. Other indigenous peoples of the Ecuadorean Amazon maintain that the effects of oil development and exploitation in the Oriente have not only damaged the environment, but have directly impaired their right to physically and culturally survive as a people. The information made available to the Commission, as well the observations made by the delegation which travelled to the interior, indicate that the opening of the traditional lands of Ecuador's Amazonian indigenous peoples to oil exploitation and other development activities has resulted in a number of directly attributable consequences.
First among these is the influx of outsiders into the traditional homelands of the indigenous peoples of the Amazon. The oil boom initiated in the interior in late 1960's led to the construction of a network of roads, used to bring in workers and equipment, as well as to construct and service production sites and other facilities, into the heart of what had traditionally been indigenous territory. In this way, oil development opened and exposed the interior in a way that previous development and outside contact had not.
In addition to the non-native workers brought in to build roads and construct and operate facilities, the opening of roads funneled colonists, land speculators, and loggers into indigenous homelands. In the case of the Oriente, this colonization was encouraged by the State, and in fact deemed a national priority.(29) Settlers typically colonize the initial kilometers fronting both sides of a road. In most cases, controls on spontaneous colonization were either non-existent or ineffectual, leading to the result that wide swaths of non-indigenous settlement now divide blocks of previously indigenous territory. Under the Ley de Colonización de la Region Amazónica, enacted to encourage the settlement and productive use of the Oriente, once settlers began moving into the territory, much of it was deemed to be "tierras baldias" or unoccupied lands.(30) Legislation to encourage the colonization of the Oriente offered title to settlers who demonstrated their domain over these lands by clearing forest for agricultural uses.(31) Estimates of the number of settlers in the Oriente vary, but appear to be at least 250,000 to 300,000.
One consequence of the influx of non-native peoples into traditional indigenous territory is the exposure of indigenous inhabitants to previously unknown diseases and epidemics, to which they have developed no resistance. The encroachment of colonists, speculators and non-native company workers into previously isolated areas introduced such illnesses as the "common cold" and influenza. Viral diseases have taken a harsh toll,(32) and continue to do so in the case of the individuals and communities who have had less contact with outsiders, such as the Huaorani.(33) Oil company workers with colds enter such areas and infect local inhabitants, who can easily develop pneumonia and die.(34) In other cases, men from indigenous communities work for the oil companies, contract unintroduced illnesses, and import them back into their communities when they return home. While the indigenous peoples of the Amazonian interior have very sophisticated systems for the preservation of their health and well-being, they lack experience with these new diseases.
With the coming of the petroleum companies, came the epidemics. We didn't know anything about the flu, the measles, almost all the region was hit. Many fled. Those that stayed were finished .... [We] couldn't keep living the old way. It was all contaminated.(35)
The Commission has received reports that the introduction of previously unencountered diseases has resulted in numerous deaths over time. There are generally few public health facilities in the interior. There are health centers in some of the more densely populated settlements, and a hospital in Coca. For many indigenous inhabitants of the Oriente, however, treatment for serious illness is not easily or widely available, as it involves evacuation to a health center or hospital via small plane.
Another consequence of the development of the Oriente and the influx of outsiders has been the displacement of indigenous inhabitants and communities. Oil exploitation activities have proceeded through traditional indigenous territory with little attention to the placement of facilities in relation to existing communities: production sites and waste pits have been placed immediately adjacent to some communities; roads have been built through traditional indigenous territory; seismic blasts have been detonated in areas of special importance such as hunting grounds; and areas regarded as sacred, such as certain lakes, have been trespassed. Many indigenous inhabitants responded to the initial years of development activity by retreating away from development and further into their traditional areas. It is reported that, pursuant to the initial introduction of oil exploitation activities in the area now called Lago Agrio, the last of the indigenous Tetetes were driven away, a circumstance believed to have hastened their extinction as a people.(36)
The Cofan, who now number only a few hundred members, were displaced from their traditional homelands and most now occupy a handful of non-contiguous communities in a portion of their former territory. Development came to their traditional territory, the Upper Aguarico River, in 1970, when the Texaco-Gulf Consortium established a base camp at Santa Cecilia.(37) Roads, production areas, landing strips and the pipeline cut their territory "into ribbons of nationalized infrastructure," and colonists followed.(38) Although the Cofan had been granted title to some 9000 acres in this zone, demarcated accordingly, a road was constructed right through the titled lands.
In a notable recent development, the Government worked with one segment of the remaining Cofan to accord them special rights to use and control a portion of their traditional hunting grounds, which had been incorporated into the Cuyabeno Reserve when it was established. Normally the designation of land as a natural reserve precludes the possibility that indigenous inhabitants of the area can gain legal recognition of their rights to the land.(39) However, these members of the Cofan worked to secure a compromise arrangement with the Government and the INEFAN whereby they were accorded rights to use some 80,000 acres within the Reserve. The Cofan designed a plan designating portions of their section of the Reserve for high, medium and low intensity activities, allowing the group to sustain itself from part of the land while managing and preserving the rest. Moreover, they were legally deputized and made responsible for the preservation of the Reserve, which means that they are authorized to safeguard against any incursion by settlers.
The pressures resulting from the influx of settlers, and the displacement of a number of communities continues to generate tension and sometimes violent conflict. At the time of the Commission's observation in situ, recent reports received by CONFENIAE indicated that the Siona, the Quichua of Sucumbios and Pastaza, and the Achuar and Shuar had all been experiencing some level of conflict with colonists. The Huaorani and settlers along the local oil road live in close proximity, also with periodic episodes of tension.
The Government has, over time, taken certain measures to address the effects of oil and other development activity on the indigenous peoples of the Oriente. This has included, for example, the formation of inter-institutional commissions to centralize and coordinate measures including action to recognize indigenously held territory.(40) In fact, a number of indigenous communities or peoples have gained title to portions of their traditional lands.(41) Some individual communities have pursued and been granted communal title by the IERAC. In other cases, large scale efforts have resulted in the delimitation of territory in favor of a people. The Siona and Secoya peoples reportedly hold title to portions of their land, and the Quichua of Pastaza, represented by OPIP, were accorded a substantial land grant of just over one million hectares.
The handling of the special agreement regarding the rights of the Cofan in the Cuyabeno Reserve, in particular, appears to demonstrate a noteworthy effort on the part of the Government to recognize the unique relationship of the indigenous inhabitants to the forest, and their special abilities to protect and manage it as a living resource. Importantly, the agreement appears to have been designed and concluded with the full and effective participation of the Cofan beneficiaries.
While it is clear that some important advances have been achieved, at the same time, the Commission has noted reports that many interior indigenous communities and groups continue to experience difficulty in legalizing their claims to territory. Indigenous leaders spoke particularly about the continuing designation of traditionally indigenous lands as "tierras baldias," and about the bureaucratic obstacles which continue to hinder claimants seeking action or redress. There continue to be indigenous communities and groups who have yet to be accorded legal recognition of their land claims. At the time of the Commission's visit, CONFENIAE indicated that the indigenous population of the Ecuadorean Amazon numbered over 137,000, divided among seven peoples.(42) It was reported that approximately 3 million hectares had been legally recognized in favor of these peoples, benefitting approximately 55% of the total indigenous population.(43)
The Human Rights Situation of the Uncontacted Indigenous Inhabitants of the Oriente
Reports indicate that there are two or three indigenous bands in the Oriente who have rejected all attempts by outsiders to establish contact with them. It is generally accepted that a small group of Tagaeri continue to exist within the Oriente, and that two other uncontacted groups, the Taromenane and Oñamenane, possibly continue to exist in this region. The Tagaeri were reportedly driven from their homelands by the southward encroachment of Texaco's exploration activities -- they are believed to inhabit part of the concession known as Block 17.(44) Reports indicate that the Tagaeri have been threatened by company workers or bands of armed men hired to seek them out to harm or intimidate them, and by adventurers. The Commission delegation received detailed accounts of several such incidents.(45) It appears from these accounts that the Tagaeri perceive all attempts at contact as aggressive and hostile. The few dozen members of these bands who are believed to exist are presumably the last of Ecuador's uncontacted indigenous peoples.
The Government of Ecuador is obliged under Article 1.1 of the American Convention to respect and ensure the human rights of all the inhabitants of the country -- including the Tagaeri-Taromenane and any remaining Oñamenane. Fulfilling this obligation with respect to any uncontacted groups presents especially difficult and complex questions. Reports received pursuant to the Commission's on site visit indicate that the State has periodically taken steps to protect the Tagaeri-Taromenane from contact. It has been suggested that steps may be taken to extend some form of legal protection to the area they are believed to inhabit, in view of the possible opening of portions of their traditional lands to oil development. The implementation of adequate measures to protect these peoples will be of critical importance if this area is to be opened to development.
As indigenous representatives have explained, action taken by their people has focused on the need to protect their traditional territories, because displacement from these lands or damage to these lands "invariably leads to serious loss of life and health and damage to the cultural integrity of indigenous peoples."(46)
The principle efforts in the struggles carried forward by the Indigenous Nationalities have concentrated on the recuperation and defense of their territories. Historically defended, we consider that these constitute the material sustenance which makes possible our present and future development, and which is additionally the foundation of our historical evolution and the permanent reference of our wisdom and our system of knowledge.(47)
The situation of indigenous peoples in the Oriente illustrates, on the one hand, the essential connection they maintain to their traditional territories, and on the other hand, the human rights violations which threaten when these lands are invaded and when the land itself is degraded. These themes are of equal importance for the indigenous peoples of the Sierra and coastal regions. For many indigenous cultures, continued utilization of traditional collective systems for the control and use of territory are essential to their survival, as well as to their individual and collective well-being. Control over the land refers both to its capacity for providing the resources which sustain life, and to "the geographical space necessary for the cultural and social reproduction of the group."(48)
Within international law generally, and inter-American law specifically, special protections for indigenous peoples may be required for them to exercise their rights fully and equally with the rest of the population. Additionally, special protections for indigenous peoples may be required to ensure their physical and cultural survival -- a right protected in a range of international instruments and conventions.
The objectives articulated by the State and by indigenous leaders in seeking to ensure the rights of the indigenous inhabitants share important common themes. The Government has characterized that:
Ecuadorean society is a unitary, pluricultural and pluriracial collective. .... In this context, the ethnic minorities or indigenous groups that form part of the Ecuadorean nationality have the right to their own culture and land; the indigenous population of Ecuador, demographically as well as historically, has had an important role in the formation of the country's nationality; the distinct ethnicities form their own cultural systems, a fact which has generated the multicultural character of Ecuadorean society.(49)
Indigenous representatives who have addressed the Commission have clearly stated that their objective is to develop the recognition that Ecuador is one State composed of many different cultures, ethnicities and nationalities, on the basis that unity will be found in celebrating this diversity.
The Commission recommends that public officials, particularly those involved in the administration of justice and law enforcement, receive appropriate training to respect the rights of indigenous individuals, and appropriate supervision to ensure that public services are performed in a non-discriminatory manner.
The Commission recommends that the State take the measures necessary to ensure, not only that its agents refrain from violative conduct, but that reasonable measures are taken to prevent discrimination within the private sector, and to ensure that when it occurs, it is treated as a human rights violation subject to appropriate sanctions.
Remedying discrimination also requires that attention be given by the State to ensuring a more equitable distribution of resources and social spending in areas with heavily indigenous populations.
Respect for indigenous expression, religion and culture implies special dispositions on the part of the State to ensure, for example, that bilingual education is available; that study plans and materials adequately reflect, communicate and respect the culture of the tribe; and that efforts are made to train teachers from within indigenous communities.
Given that the protection of the rights of indigenous individuals and communities affected by oil and other development activities requires that adequate protective measures be put in place before damage has been suffered, the Commission recommends that the State take the measures necessary through the INDA and other agencies to restrict settlers to areas which do not infringe upon the ability of indigenous peoples to preserve their traditional culture.
Such protection further requires that the State take the measures necessary to ensure the meaningful and effective participation of indigenous representatives in the decision-making processes about development and other issues which affect them and their cultural survival. "Meaningful" in this sense necessarily implies that indigenous representatives have full access to the information which will facilitate their participation.
The Commission encourages the State to take the steps necessary to resolve pending claims over the title, use and control of traditionally indigenous territory, including those required to complete any pending demarcation projects.
The Commission recommends that the State take whatever measures are necessary to guarantee the lives and physical integrity of the Tagaeri, and any Taromenane and Oñamenane who may survive in the forest, such as the establishment of some form of legal protection for the lands they inhabit, as their very extinction as peoples is at issue.
1. This figure is often cited as approximately 40%, but difficulties in identification and the lack of reliable census data on the breakdown between the indigenous and non-indigenous population leave the number imprecise.
2. See, M. Gonzalez, "How Many Indigenous People?," in Indigenous People and Poverty in Latin America, (G. Psacharopoulos & H. Patrinos eds. 1994), at 31.
3. Prior to the reforms, the Constitution had characterized the country as "sovereign, independent, democratic and unitary."
4. Prior to the 1996 reforms, Spanish was recognized as the official language, and Quichua and the other indigenous languages were recognized as forming part of the national culture.
5. In its March 19, 1997 submission, the Government noted that several programs had recently been initiated with the objective of enhancing the participation of indigenous peoples in areas of national production, including the Program of Community Agricultural Companies, using ancestral technologies and covering four communities, a program of credit for Integral Self-sufficient Farms, and the PRONADER programs of the Ministry of Social Wellfare.
6. This Convention has been reformed by ILO Convention 169, to which Ecuador is not a party.
7. The fact that subsurface minerals pertain to and may be exploited by the State has had special implications for indigenous peoples. Traditional indigenous lands have been licensed by the State for timber-cutting on the coast, and for oil exploitation in the Amazon, and for gold-mining in the far reaches of Amazonia. As noted in a report by the United Nations Centre on Transnational Corporations, "Ecuador's oil boom will be short-lived .... [However] [t]he adverse impacts on indigenous peoples, and on the sustainable productivity of the forest, are irreversible." "Transnational Investments and Operations on the Lands of Indigenous Peoples," E/CN.4/Sub.2/1991/49, 17 July 1991, at 22 para. 6. This situation is further examined below.
8. The Law of Comunas recognizes in its preamble that by 1976 there were 1,244 comunas in the Highland region, compared with only eight in the Amazon region.
9. The law in effect was adopted after a different text approved in June of 1994 (Law Number 54) provoked a widespread uprising in indigenous communities throughout the country, and after the Tribunal of Constitutional Guarantees declared that Law 54 should be suspended pursuant to the filing of a claim of unconstitutionality by CONAIE. The Government then appointed a commission, including representatives of the indigenous and campesino sectors, to reexamine and reformulate some of the reforms.
10. See, "Voz de la CONFENIAE," No. 13, Julio -- Septiembre de 1994, at 8-9.
11. The law in effect replaced the Ecuadorean Institute of Agrarian Reform and Colonization (IERAC) with the Instituto Nacional de Desarrollo Agrario (INDA). The law provides that the INDA is to include two representatives each from the indigenous, "montubio," Afro-Ecuadorean and campesino social sectors to supervise the application of agrarian development policy.
12. See, "Voz de la CONFENIAE," supra n. 8, at 9.
13. Additionally, while these areas are theoretically protected from development, according to CEDENMA development is being pursued in the following: Parque Nacional Yasuni (Maxus, Elf), Reserva de Producción Faunística Cuyabeno (PetroEcuador, City), Reserva Biológica Limoncocha (Occidental), and the Parque Nacional Sumaco (Amoco-Mobil). Many of these areas have special importance to indigenous peoples as their homelands or traditional hunting grounds.
14. In the view of the Commission, for an ethnic group to be able to preserve its cultural values, it is fundamental that its members be allowed to enjoy all of the rights set forth by the American Convention on Human Rights, since this guarantees their effective functioning as a group, which includes preservation of their own cultural identity." IACHR, Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser.L/V/II.62, Doc. 10 rev. 3, 29 Nov. 1983, at 81.
15. Resolution No. 12/85, Case No. 7615 (Brazil), March 5, 1985, printed in, Annual Report of the IACHR 1984-85, OEA/Ser.L/V/II.66, doc. 10 rev. 1, Oct. 1, 1985, at 24, 31.
16. As this Commission has previously noted, Article 27 of the ICCPR affirms the principle that ethnic groups may require certain additional protections beyond those granted to all nationals, in order to bring about true equality among the nationals of that state. Miskito Report, supra note 12, at 76.
17. General Comment No. 23 (50) (art. 27) [of the ICCPR], adopted by the Human Rights Committee at its 1314th meeting (fiftieth session), 6 April 1994.
18. Yanomami Report, supra n. 13, at considerandum, para. 9. The Commission has also declared: "that for historical reasons and because of moral and humanitarian principles, special protection for indigenous populations constitutes a sacred commitment of the states." Resolution of the IACHR "on the problem of special protection for indigenous populations," OEA/Ser.L/V/II.29, Doc. 38 rev., 1972.
19. M. Gonzalez, supra n. 2, at 32, citing, N. Hornberger, "Literacy in South America," 12 Annual Review of Applied Linguistics 1992 at 190.
20. In November of 1988, pursuant to a proposal offered by CONAIE, the General Regulation of the Education Law was reformed to place indigenous education under the authority of the National Headquarters of Intercultural Bilingual Education.
21. Asunto 4761, 10 de septiembre de 1993, Departamento de Planificación.
22. R. Stavenhagen, "Indigenous Peoples: Emerging Actors in Latin America," in Ethnic Conflict and Governance in Comparative Perspective, Working Paper 215 at 1, 12 (Latin American Program, Woodrow Wilson Center 1995).
23. F. Caportorti, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, para 585 (United Nations Centre for Human Rights 1991).
24. Id., at para. 316.
25. See generally, "Final report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur," on "Human Rights and the Environment," E/CN.4/Sub.2/1994/9, 6 July 1994, paras. 77, 78-93. The Special Rapporteur cites, in particular, the case law of the Inter-American Commission on Human Rights dealing with human rights violations arising "as a consequence of land rights violations and environmental degradation" or "displacement from ... traditional indigenous lands." Id. at paras. 88-89.
26. The petition, dated June 1, 1990, was filed by the Confederación de Nacionalidades Indígenas de la Amazonía Ecuatoriana (CONFENIAE) on behalf of the Huaorani People. Hearings on the petition were held on September 20, 1991 and Oct 4, 1993. The Organización de la Nacionalidad Huaorani de la Amazonia Ecuatoriana (ONHAE) became a co-petitioner in September of 1992.
27. The petitioners indicated that the lands designated as the Huaorani Protectorate comprised only 3.3% of their traditional lands. The 1990 grant amounted to approximately 33% of the lands traditionally inhabited by the Huaorani. See, CONFENIAE, La Nacionalidad Huaorani y la Defensa de su Territorio 5-7 (Quito 1989), submitted as Annex 3 to Petitioners' submission to the IACHR of June 1, 1990.
The petition further indicated that Block 16, when designated, had fallen within the boundaries of the Yasuni National Park. (protected natural areas are, in principle, not susceptible to development.) In April of 1990, however, the boundaries of the Park were changed to exclude the land designated as Block 16, which was subsequently included in the 1990 land grant to the Huaorani. The terms of the 1990 grant expressly preclude the Huaorani from impeding the exploitation of oil or minerals by Government or Government-authorized operations.
28. The petitioners alleged the imminent violation of the right to life and security of the person (Convention, Art. 4; Declaration, Art. I); the right to preservation of health and well-being (Declaration, Art. XI); the right to humane treatment (Convention, Art. 5); the right to protection of the family (Convention, Art. 17; Declaration, Art. VI); the right to freedom of residence and movement (Convention, Art. 22; Declaration, Art. VIII); the right to inviolability of the home (Convention, Art. 11; Declaration, Art. IX); the right to religious freedom and worship (Convention, Art. 12; Declaration, Art. III); the right to property (Convention, Art. 21; Declaration, Art. XXIII); and the right to privacy (Convention, Art. 11).
29. Prior to the 1995 reforms, Article 51 of the Constitution of Ecuador provided in pertinent part: "Settlement shall be organized and promoted so that the farming frontier may be extended and a well-balanced re-establishment of the population into the national territory may be obtained."
30. In a drive to stimulate agricultural production, the Government implemented a new series of agrarian laws in 1974 which predicated title on the productive use of at least 80% of the holding; land not visibly "productive" was regarded as tierras baldias and subject to redistribution by IERAC.
31. Many of the settlers in the Oriente are indigenous peoples from other areas, principally the Sierra as well as other parts of the Oriente, who have been displaced from their traditional territories. Other colonists are former laborers or farm workers, who came in search of land from which to provide for themselves and their families. As expressed by one settler, "to have land is to have security, life, health and family union."
32. See, E. Martínez, "Indicadores sociales y culturales de los impactos producidos por la actividad petrolera," in Amazonía por la Vida 41 (Acción Ecológica 1994).
33. See, W. Vickers, Ph.D. (Anthropologist), Declaration Concerning the Planned Road Construction Through the Yasuni National Park and Huaorani Indian Territory (May 2, 1990), submitted as annex 7 to petition filed on behalf of the Huaorani on June 1, 1990.
34. See, James A. Yost, Ph.D. (Anthropologist), Assessment of the Impact of Road Construction and Oil Extraction Upon the Waorani Living on the Yasuni (Report prepared for Conoco Ecuador, Ltd.) (April, 1989), submitted as app. C to petition filed on behalf of Huaorani people on June 1, 1990. Dr. Yost, an anthropologist who has worked with the Huaorani for years, reported his personal experience of having buried many Huaorani and their babies who caught colds from outsiders and died from secondary pneumonia. He recommended the use of a quarantining system for non-native workers entering indigenous areas.
35. Touribe, of the Cofan village of Durano [sic]. All Things Considered, National Public Radio Broadcast, Sept. 3, 1991, at 16 (Transcript), quoted in, Note, "Debt, Oil, and Indigenous Peoples: The Effect of United States Development Policies in Ecuador's Amazon Basin," 5 HARV. H.R. JN'L 174, 177 n. 31.
36. See, E. Martínez, supra note 30; J. Kimerling, "Dislocation, Evangelization, and Contamination: Amazon Crude and the Huaorani People," in Working Paper No. 215, Ethnic Conflict and Governance in Comparative Perspective, (Latin American Program, Woodrow Wilson Center ed. 1995) at 70, 76 n.18 (citing interview with Luis Carrera, President of the Environmental Advisory Commission to the President of the Republic, Quito (Jan. 26, 1994)).
37. N. Whitten, "Amazonia Today at the Base of the Andes, An Ethnic Interface in Ecological, Social, and Ideological Perspectives," in Cultural Transformations and Ethnicity in Modern Ecuador (N. Whitten ed. 1981) 121, 134-35.
39. Article 72, Forestry and Natural Areas and Wildlife Law (providing that all land within such areas must either be expropriated or revert back to the State). Huaorani and Quichua communities situated in the Yasuni National Park are reportedly struggling with the fact that some of their traditional lands were included within the boundaries of the Park, thereby depriving them of any right of access or control.
40. One such Interinstitutional Commission, established in 1980, played a critical role in promoting the delimitation of indigenous territory. See, Informe para la delimitación de territorios nativos Siona, Secoya, Cofan y Huaorani (Quito, 1983)(portion submitted within annex 3 to petition of June 1, 1990 filed on behalf of Huaorani people). For example, it carried out studies which indicated that territory legalized as the Huaorani Protectorate/Reserve in 1983 was insufficient to meet their cultural survival needs, and excluded a number of bands. The Interinstitutional Commission also recommended that measures be taken to ensure the Siona and Secoya additional control over their remaining lands.
41. In at least one instance, it was reported to the Commission that completion of the demarcation of territory had been delayed. More specifically, it was reported that, while the demarcation of most of the land accorded to the Huaorani in 1990 had proceeded smoothly, the ONHAE team cutting the demarcation line realized that if it were cut according to plan, the Huaorani community of Cacataro would either be excluded from the titled lands, or would have to leave their homes, hunting grounds and forest gardens. Accordingly, they cut the line to include that community, and ONHAE has since manifested its desire to legalize this change in the line to protect those living in Cacataro. The Commission delegation was informed that this change would imply an extension in the grant of 25 kilometers.
42. See, "Voz de la CONFENIAE," No. 12, Abril-Mayo-Junio 1994, at 7.
44. Observers speculate that the Tagaeri are determined to remain in isolation, as evidenced by the spearing to death of two missionaries, Monseñor Labaca and Sister Arano, who entered the area they are known to inhabit in 1987 in an attempt to contact them.
45. Some of these are recounted in J. Kimerling, supra n. 34, at 91-94.
46. "Human Rights and the Environment: Final Report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur," E/CN.4/Sub.2/1994/9, 6 July 1994, para. 77.
47. CONFENIAE, "La Nacionalidad Huaorani y la Defensa de su Territorio" 1989, p. 3, (filed as annex 3 to the petition filed on behalf of the Huaorani on June 1, 1990).
48. R. Stavenhagen, supra n. 20, at 11.
49. Grupo de Trabajo sobre Poblaciones Indígenas, información recibida por los gobiernos, E/CN.4/Sub.2/AC.4/1994/2, 9 de junio de 1994 (información recibida por el Gobierno de Ecuador 14 de abril de 1994 en respuesta al proyecto de declaración dobre los derechos de los pueblos indígenas contenido en el informe E/CN.4/Sub. 2/1993/29).