I.    INTRODUCTION

1.             The Special Rapporteur carried out an official visit to Bolivia, at the invitation of the Government and at the instance of the country’s indigenous organizations, from 26 November to 4 December 2007.

2.             In accordance with the mandate given to the Special Rapporteur in Human Rights Council resolution 6/12, the objectives of the visit were to examine ways and means of overcoming existing obstacles to the full protection of the human rights and fundamental freedoms of indigenous people in Bolivia, gather information from all relevant sources on alleged violations of their human rights and fundamental freedoms, and formulate recommendations and proposals on appropriate measures and activities to prevent and remedy such violations.

3.             The Special Rapporteur expresses his sincere appreciation to the Government of Bolivia for its invitation and for the open and cooperative manner in which it received his visit, as well as to the many indigenous and civil society organizations that extended him hospitality and support. He also expresses particular appreciation to the country office in Bolivia of the Office of the United Nations High Commissioner for Human Rights (OHCHR) and to the United Nations country team.

4.             The Special Rapporteur also wishes to acknowledge the assistance provided by the Indigenous Peoples Law and Policy Program (IPLP) of the University of Arizona in preparing his mission, as well as the generous support provided by the Danish organization IBIS, the International Centre for Human Rights and Democratic Development and the International Work Group for Indigenous Affairs (IWGIA) for the purpose of holding consultations with the Bolivian indigenous organizations.

II.    PROGRAMME OF THE VISIT

5.             During his mission, the Special Rapporteur visited the departments of Beni, Chuquisaca, Cochabamba, La Paz, Oruro, Potosí and Santa Cruz. In the capital, La Paz, the Special Rapporteur held meetings with various government officials, including the President of the Republic, Evo Morales Ayma; the Ministers of Foreign Affairs, Justice, Rural Development, Farming and the Environment, and Labour; various vice-ministers; and officials responsible for the Indigenous Rights Mainstreaming Unit and the Community-Based Policy Department of the Ministry of the Presidency. He also met with the president of the Constituent Assembly and several of its members, as well as with the Ombudsman. During his visits to the various departments, he met with the prefect of Oruro, with representatives of the prefecture of Santa Cruz and with various municipal authorities.

6.             The Special Rapporteur also held meetings with traditional authorities and leaders of the various Aymara and Quechua nations, as well as with, inter alia, the Ayoreo, Chiquitano, Guaraní, Guarayo, Mojeño, Movima, Tacana, Trinitario, Uru, Yuqui and Yuracaré peoples. He also met with the main indigenous organizations of the country, including the Confederation of Bolivian Indigenous Peoples (CIDOB), the National Council of Ayllus and Markas of Qullasuyu (CONAMAQ), the Trade Union Confederation of Original Settlers of Bolivia (CSCB), the Single Trade Union Confederation of Tenant Farmers of Bolivia (CSUTCB) and the National Federation of Women Tenant Farmers of Bolivia “Bartolina Sisa” (FNMCB “BS”), as well as with representatives of their federations and member organizations. In addition, the Special Rapporteur participated in meetings with the NGOs that make up the human rights community, as well as with other civil society organizations, academic institutions and private companies.

7.             Similarly, the Special Rapporteur held information sessions with the bodies, funds and agencies represented by the United Nations country team, representatives of the diplomatic community and bilateral cooperation agencies and with the secretariat of the Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean.

III.     SOCIAL AND POLITICAL CONTEXT

8.             As amended in 1995, the Constitution defines Bolivia as a unitary, multi-ethnic and multicultural Republic. According to the 2001 population and housing census, 62 per cent of the population identifies itself as indigenous. Official recognition is granted to 37 indigenous peoples. Of these, the Quechua and Aymara - comprising 30.7 per cent and 25.2 per cent, respectively - constitute the majority and reside mainly in the Andean region, in the valleys of the western part of the country and in urban areas. In the eastern lowlands - the Chaco and the Amazonian region - 17 per cent of the population is indigenous and comprises 32 distinct peoples. Of these, the most numerous are the Chiquitano, the Guaraní and the Mojeño, who live alongside internal migrants from the highlands. Many Bolivians identify themselves as either Andean kolla (indigenous), most of whom are Quechua or Aymara, or camba from the lowlands, where the majority of the population defines itself as mestizo and where the indigenous population constitutes a demographic minority.

9.             Bolivia became an independent Republic in 1825. As in other countries in the region, independence did not put an end to the colonial pattern of exploiting and marginalizing the predominantly indigenous population or the plundering of their lands. The nationalist revolution of 1952 paved the way for the development of citizenship among the indigenous population and implemented agrarian reform. The revolution encouraged the social and political mobilization of the highland indigenous communities and promoted trade unionization in mining and tenant farming, with the active participation of indigenous workers.

10.         Starting in the late 1960s, the indigenous peoples began to emerge as new sources of power and as dynamic actors on the national political scene. During the 1990s, marches led by the indigenous organizations served as vehicles for conveying their demands to the central Government. One product of the indigenous movement was the first recognition of indigenous rights in the constitutional reform of 1995, which highlighted the country’s multicultural and multi-ethnic nature and provided for a series of legislative amendments, including the promotion of land titling in the indigenous territories.

11.         In December 2005, the first indigenous President of Bolivia, Evo Morales Ayma, was elected with the support of the country’s main indigenous organizations. The new Government announced its intention to promote far-reaching changes aimed at benefiting the indigenous population. Some of the reforms that were adopted, such as the agrarian property regime and the renegotiation of hydrocarbon contracts, as well as the debate surrounding the country’s proposed new Constitution, have given rise to conflicts pitting the central Government against the prefects and other political, social and economic sectors in the lowlands.

12.         The current political and social conflict in Bolivia can be explained by geodemographic differences: although political power is wielded from the highlands, economic power in recent decades has shifted to the lowlands. The department of Santa Cruz has taken the lead in advocating departmental autonomy, which includes a demand for control of the area’s natural resources (land, water, forests, hydrocarbon reserves), management of which is crucial to the central Government in pursuing its programme of social reform. In order to further its demand for autonomy, the Santa Cruz ruling class has symbolically identified itself as the “camba nation” by way of challenging the power of the highland Kolla.

IV.    LEGAL AND INSTITUTIONAL FRAMEWORK OF INDIGENOUS PEOPLES’ RIGHTS

A.    International legal framework

13.         Bolivia has ratified the core United Nations human rights treaties and those of the Organization of American States (OAS), as well as the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169).

14.         On 7 November 2007, Congress adopted Act No. 3760, elevating to the rank of domestic law the 46 articles of the United Nations Declaration on the Rights of Indigenous Peoples adopted by the General Assembly at its sixty-first session. This step demonstrates Bolivia’s commitment to the promotion and protection of indigenous rights, despite the fact that the practical implications of the Declaration have not yet been determined, in particular as concerns the reform of sectoral legislation and judicial practice.

B.    New Constitution and programme of legislative reform

15.         Following several years of debate, a new Constituent Assembly was convened in 2006, with many indigenous members among the participants. The deliberations of the various Assembly committees in the city of Sucre took place in a context of acute social conflict. The new constitutional draft was given general approval on 24 November 2007 in the absence of most members of the opposition and in the midst of major unrest that required moving the Assembly’s headquarters to the outskirts of Sucre. The text was subsequently given detailed approval in Oruro on 10 December 2007. At the time of publication of the present report, some sectors of the opposition were still questioning the legitimacy of the Assembly and the new constitutional text.

16.         The draft new Constitution, which will be subject to a referendum, incorporates broad recognition of indigenous peoples’ rights as part of a new plurinational and intercultural State model that will affect the nature and organization of all State powers and institutions. The draft incorporates the principles of the United Nations Declaration on the Rights of Indigenous Peoples, including “the right [of indigenous peoples] to self-determination within the context of State unity, which consists of their rights to autonomy, self-government, the maintenance of their culture, recognition of their institutions and consolidation of their territorial entities” (art. 2).

17.         Based on these principles, the draft Constitution includes a section on the rights of the “indigenous, native, peasant nations and peoples”, including innovative formulas for the recognition of their rights to autonomy and jurisdiction; rights in respect of lands, territories and natural resources; and rights to cultural identity and to intercultural education. The draft also provides for indigenous participation in the operational structure of the State, including the Plurinational Legislative Assembly and the Plurinational Constitutional Court, while also recognizing that indigenous institutions are “part of the general State structure” (art. 30.5).

18.         Along with the process of constitutional reform, the Government promoted legislative reform in various areas of special interest to indigenous peoples. Particularly noteworthy is the adoption in November 2006 of the Community-Based Agrarian Reform Renewal Act (No. 3545) and, in August 2007, of its Regulations (No. 29215), which gave fresh impetus to the recognition and distribution of indigenous lands; the 2007 Regulations on Consultation and Participation in Hydrocarbon Activities (Supreme Decree No. 29033); and the Regulations on Socio-Environmental Monitoring of Hydrocarbon Activities in the Territory of Native, Indigenous Peoples and Peasant Communities (Supreme Decree No. 29103).

C.    New institutional framework and public policy

19.         One of the first decisions of the new Administration was to abolish the Ministry for Indigenous and Native Peoples’ Affairs (MAIPO), which had been established in 2003, as it was considered discriminatory in a country with a predominantly indigenous population. MAIPO was replaced by an approach designed to mainstream indigenous affairs into the public policy agenda at all levels, responsibility for which now lies with such bodies as the Indigenous Rights Mainstreaming Unit and the Inter-agency Technical Committee for Indigenous Peoples, which are attached to the Ministry of the Presidency. Also established were the Vice-Ministry of Community-Based Justice, which is attached to the Ministry of Justice, and the Vice-Ministry of Traditional Medicine and Interculturalism, which is attached to the Ministry of Health.

20.         The dissolution of MAIPO prompted frustration among some indigenous organizations and development cooperation agencies, in that MAIPO had served as a focal point for policies relating to indigenous peoples. Although it is still too early to evaluate the impact of this change in policy, necessary precautions should be taken in order to avoid disrupting channels of communication between the organs of the central Government and the indigenous peoples.

21.         The Government has also announced its intention to implement the provisions of the Hydrocarbons Act requiring 5 per cent of the income generated by the Direct Tax on Hydrocarbons to be earmarked for the establishment of the Fund for the Development of Indigenous and Native Peoples and Peasant Communities, which is currently endowed with 436,221,212 bolivianos (approximately US$ 57 million). However, according to information received, the Fund has so far been underused and still has only a very limited portfolio of projects for actual implementation.

22.         It is worth noting that the United Nations country team includes an inter-agency working group on interculturalism, which brings together the heads of the various agencies and organizations whose programmes and activities have particular relevance for the indigenous peoples of Bolivia. This working group is part of the National Council for Dialogue among Indigenous, Native, Peasant Peoples and the United Nations System - a progressive mechanism for consultation and dialogue with the main indigenous organizations in the country. Also worth noting are the activities of the Sectoral Group for Indigenous Peoples’ Rights as part of the Partners for Bolivia Group (GRUS), which is the coordinating body for the donor community in Bolivia.

V.     THE HUMAN RIGHTS SITUATION OF THE INDIGENOUS PEOPLES

A.    Indigenous participation and autonomy

23.         Indigenous political participation, encouraged by indigenous organizations’ efforts at mobilization since the beginning of the 1990s, has been a key factor in the gradual recognition of these peoples’ political structures in the various organs of the State. One very important legal instrument in this process is the 1994 Popular Participation Act (No. 1551), which recognized the legal status of “grassroots organizations”, including those of the indigenous peoples, and distributed powers and budgetary resources to the municipalities. This Act enabled many leaders of indigenous organizations and communities to gain access to political office at the local level.

24.         The election of the first indigenous President in 2005, after a campaign that had the support of the main indigenous organizations in the country, has become an important symbol of the indigenous peoples’ participation in the country’s political, economic, social and cultural life. The current Government has taken a variety of measures to strengthen indigenous political participation at all levels, including the appointment of senior officials of indigenous origin. Similarly, innovative forms of indigenous participation in local governance have been implemented, as illustrated by the administration of the indigenous district of Kaami in the municipality of Camiri or by the decentralization policy of the Oruro prefecture, which takes ayllu groups into account as traditional forms of supracommunity organization in the highlands. In the departments of the lowlands, indigenous representatives participate (with a voice, but not a vote) in departmental council meetings.

25.         The new constitutional text has once again highlighted the question of indigenous autonomy within a broader debate regarding the State model. The draft text recognizes indigenous autonomous areas, which include the “indigenous, native, peasant” territories, municipalities and territorial regions, configured according to the indigenous peoples’ own rules and forms of organization (arts. 290-297). Indigenous autonomy is not exclusive and is coordinated with other forms of constitutionally recognized autonomy (municipal, regional and departmental), which must be regulated by means of secondary legislation. It should be noted, however, that these proposals for autonomy do not yet command a consensus among all political actors in the country.

B.    Indigenous justice and law

26.         The draft constitutional text strengthens the concept of indigenous community-based justice already recognized in the current Constitution (art. 171) and provides for a plurinational constitutional court whose composition ensures that judges from the ordinary courts and judges from the indigenous justice system are represented equally. A bill on the administration of justice of indigenous native peoples and peasant communities was submitted to Congress in 2007. The constitutional draft is careful to subordinate traditional community-based justice, which is, in fact, practised in many communities, to respect for the right to life and to the other constitutional rights and international human rights standards.

27.         In Bolivia, as in other countries, there have been incidents of lynching and of people taking the law into their own hands. Some social sectors and communications media have exploited these incidents in an attempt to defame indigenous justice and to deprive it of full recognition; in reality, however, one of the chief causes of these incidents appears to be the inability of the judiciary and the Public Prosecutor’s Office to ensure respect for the rule of law in many parts of the national territory.

C.     Reconstitution of indigenous territories

28.         The structure of land ownership in Bolivia is highly inequitable: 10 per cent of the land is owned by 90 per cent of family farmers, most of them indigenous, while 90 per cent of the land is in the hands of large landowners. The 1953 agrarian reform distributed land titles to many small indigenous property owners and culminated in the development of the hacienda system in the altiplano. However, it also had the detrimental effect of creating the small holdings (minifundios) and so-called “furrow holdings” (surcofundios) in that region when properties that were tiny to begin with were fragmented still further through inheritance. Meanwhile, in the lowlands, property was distributed at the discretion of successive de facto governments, creating a new form of large-scale landholding (latifundio) in favour of the farming and forestry industries and at the expense of traditional indigenous territories.

29.         The Act concerning the National Service for Agrarian Reform (No. 175), which was adopted in 1996, launched a process of agricultural land ownership regularization under the authority of the National Agrarian Reform Institute (INRA). Among the main innovations of the Act is the creation of a class of property belonging collectively to an indigenous people and referred to as “tierras comunitarias de Origen” (TCO) (original community lands). The Act recognized indigenous peoples’ right to the sustainable use and development of the renewable natural resources of these lands, the right to the self-management of the lands, in conformity with indigenous customary law, and the principles of the inalienability and immunity from seizure of the lands. However, secondary regulation has done much to undermine the principles of the Act, with the regularization process having degenerated into an opportunity to obtain title to lands questionably acquired or occupied, thereby exacerbating the situation of legal uncertainty.

30.         In November 2006, Congress adopted the Community-Based Agrarian Reform Renewal Act (No. 3545), which made substantive changes to the previous agrarian system. The Act provides for the regrouping of small agricultural holdings and for the distribution of lands to indigenous peoples who do not have sufficient land or who need to complement their holding with more land. In order to accomplish this, the Act prescribes, as cause for reversion, the failure of a property to fulfil its economic and social function and stipulates that all land expropriated in the public interest is to be distributed “exclusively to indigenous and/or native peoples” who do not possess sufficient land (art. 43). The new indigenous land titling policy has borne fruit. According to INRA data, since the current Administration came to power, some 3,889,291 hectares have been titled, as against the 5,516,210 hectares titled during the period from 1996 to 2006.

31.         Despite all the efforts made, however, major delays continue to occur in the processing of many pending TCO titling claims, owing in part to budgetary constraints. In the altiplano and the valleys of the Andean region, where indigenous smallholdings predominate (between 1 and 1.5 hectares per family), indigenous organizations complain that the regularization process has not genuinely strengthened property rights, and that, in many cases, the surface area recognized as belonging to indigenous peoples is insufficient or does not correspond to their traditional territories.

32.         With regard to the eastern lowlands, the Special Rapporteur received numerous reports and documentation concerning irregularities in the land distribution process and the illegal appropriation of indigenous lands by farm operators - usually with the connivance of local authorities - through speculative practices in the illicit real estate market and through illegal logging. For example, the Ministry of Rural Development, Farming and the Environment has amply documented the illegal appropriation, by an influential landowner in the region, of 27,000 hectares of land belonging to the Forest Reserve and the Guarayos TCO in the department of Santa Cruz.

33.         Another threat to indigenous holdings in the lowlands, particularly in the area of Santa Cruz, is the pressure created by the encroachment on TCOs of indigenous settlers and peasants from other parts of the country. Legal uncertainty surrounding the system of land tenure and the illegal appropriation of land by farm operators, together with the unsatisfied demands of the indigenous communities and of the landless peasant communities, make for highly conflictual situations.

D.     Exploitation of natural resources and its impact on indigenous peoples

34.         Bolivia is a country rich in natural resources, including metals in the Andean region and hydrocarbons in the eastern lowlands, the exploitation of which has had a negative impact on the indigenous territories and societies. In the past few decades, inadequate socio-environmental regulation and lack of oversight of corporate activities, together with the absence of mechanisms to regulate consultation with the indigenous communities affected by such activities, have created severe environmental crises in the country’s indigenous territories.

35.         The Special Rapporteur received numerous complaints concerning environmental pollution of soils and waters traditionally used by the region’s indigenous communities as a result of mining concessions awarded in the departments of Oruro and Potosí. Many of these involve mining companies (sometimes using open-pit methods) that extract heavy metals such as gold, silver, lead and zinc by means of high-pollution processes. Environmental deterioration translates into a loss of land for cultivation, the contamination of underground aquifers, rivers and lakes, and the death of livestock and forest fauna. There have been many complaints about the failure of these mining operations to comply with environmental licensing conditions and about the absence of any compensation for damage.

36.         In the Andean region, one of the most emblematic cases is the pollution of the Desaguadero river basin and of the Uru Uru and Poopó lakes in the department of Oruro, which is part of the Suyu Suras territory, the traditional homeland of the Jach’a Carangas, Sura, Quillaxas and Asanakes communities of the Quechua and Aymara peoples and the Uru, a native people who have traditionally derived their livelihood from fishing and hunting and currently find themselves in a highly vulnerable situation. High levels of pollution have been documented in the lake area resulting from the discharge of wastewater from active mines in the surrounding region.

37.         The Special Rapporteur visited the Kori Kollo gold mine operated by the Inti Raymi company and received information from its management concerning measures taken to reduce the effects of pollution. However, organizations consulted by the Special Rapporteur reported that the relevant authorities do not effectively oversee or penalize the companies responsible for damaging the environment, as required under the mining and environmental legislation.

38.         The altiplano communities in the southwestern part of Potosí have complained of various plans to award concessions for groundwater exploitation to mining companies in northern Chile that require large volumes of water for their operations. Act No. 2267 of November 2001 calls for priority to be given to studying the region’s hydro potential, precisely with a view to exporting water on the basis of a call for tender from foreign companies. Act No. 2074 of May 2004, which was promulgated following the mobilization of the region’s indigenous organizations in favour of the comprehensive development of the southwestern area of Potosí, expressly prohibits the export of groundwater and surface water.

39.         The representatives of the ayllus of Quila Quila, Chuquisaca, have lodged a complaint for failure to be informed and consulted in the award to a joint venture company of the concession for a limestone deposit. The administrative and legal proceedings filed by indigenous representatives have not been effective, and the latter have allegedly been the target of attacks and have had their legal personality annulled by the municipality and the prefecture, which supported the interests of the company over those of the affected communities.

40.         The impact of hydrocarbon extraction in various indigenous territories in the Amazonian and Chaco regions has been thoroughly documented. Among the specific cases submitted to the Special Rapporteur may be noted the construction of the San Miguel-Cuaibá binational gas pipeline between Bolivia and Brazil, which has led to the destruction of large swathes of the Chiquitano dry forests and has contributed to the encroachment on and appropriation of indigenous lands.

41.         The Assembly of the Guaraní People undertook an independent review of the transnational mining industry, including the consortium to exploit Campo Margarita - one of the largest gas fields in the country located in the Itika Guasu TCO in Tarija and the Tentayapi TCO in Chuquisaca. This review documented the failure of the consortium, and of others, to comply with the measures set out in environmental impact studies, the lack of transparency and consultation with the indigenous communities and the State’s failure to provide proper oversight of the consortium’s activities. An ILO tripartite committee found the lack of an appropriate legal framework in the case of 27 forestry concessions in the indigenous territories of Yaminahua-Machinery, Guarayo and Monte to be in violation of ILO Convention No. 169.

42.         The impact of resource extraction in the indigenous territories is not limited solely to large hydrocarbon exploration and extraction projects but also includes the contamination of aquifers and fauna by artisanal alluvial gold mining and illegal logging in parts of the Amazonian region, such as Pando or Beni. In many cases, these are transnational phenomena that involve citizens and companies of neighbouring Peru or Brazil and have a highly detrimental environmental impact on the indigenous peoples. The State has shown itself incapable of controlling the extensive environmental pollution caused by these activities.

43.         The Hydrocarbons Act has been developed through recent specific regulations on consultation and socio-environmental oversight, which are recognized in customary law and in the internal forms of organization of the communities. Henceforth, environmental impact evaluation studies will be required to address a project’s social, economic and cultural implications for the indigenous peoples in the territories, as well as to make specific proposals for preventive and remedial environmental action. It remains to be seen how this new legal framework will be implemented in practice and what effect it will have on the many existing resource exploration and extraction projects.

44.         Of particular concern is a project to build a hydroelectric dam complex on the Brazilian side of the Madeira River that will impact the river basin as the Madeira passes through Bolivia. The project provides for the construction of four dams: two on the Brazilian side, one between the two countries and one on the Bolivian side. There are fears that the project will increase reservoir sedimentation and, along the binational section of the Madeira, raise its water level and that of its tributaries, with highly adverse effects on fish stocks and other resources crucial to the subsistence economy of the indigenous communities in the departments of Pando and Beni, and flood agricultural lands and pastures, resulting in the forced expulsion of the communities and an increase in malaria and other diseases. There are also fears for the survival of the Pacahuara communities living in isolated areas near the Brazilian border, and mention has been made of the negative impact on the local indigenous population that other similar projects, such as the El Bala project on the Beni River, could have.

45.         A number of demonstrations, particularly the one organized in Cochabamba in 2000, have resulted in changes to regulations concerning the ownership and distribution of water in Bolivia. In the case of Cochabamba, the cancellation of a distribution contract awarded to a transnational enterprise prevented a drastic increase in rates and allowed unhampered access to irrigation water by the indigenous and peasant communities to be maintained. Bolivian water legislation recognizes the right of indigenous communities to traditional use and has become a model for other countries in the region.

E.    Highly vulnerable peoples

46.         The Yuqui people are among the most vulnerable indigenous groups. In 1959, contact was established with them for the first time, and in 1969, they were transferred to a mission encampment by the American evangelical organization, New Tribes Mission. Beginning in the 1980s, reports began to mount of Yuqui massacres at the hands of settlers, ill-treatment and forced religious conversion by the Evangelical mission and numerous epidemics of tuberculosis, pulmonary mycosis and other diseases. Following a number of other sporadic contacts, in the 1980s, and with the consent of the Government, members of the Yuqui people were gradually transferred to the Bia/Recuaté Community on the Chimoré River, where they were awarded a Yuqui TCO. In 2004, the Yuqui joined the Ichilo River Indigenous Council (CIRI) in a multi-ethnic territory located in the department of Cochabamba. The Yuqui population, which is estimated to total between 200 and 230 persons, is continually subjected to territorial pressure from settlements, indigenous communities in the adjacent TCO and logging companies involved in the extraction of forest timber.

47.         There are also other peoples, few in number and vulnerable who are either itinerant or have settled in small territorial communities. This is the case of the Ayoreo (in Santa Cruz), Uru, Uru Murato, Tsimane and Leco peoples. These groups complain of their lack of title to land or to urban plots, as the case may be, and the fact that their survival depends on the tolerance and consideration they receive from the permanent residents of the places where they live.

48.         In April 2007, the Ministry of Rural Development, Farming and the Environment, in conjunction with the Confederation of Bolivian Indigenous Peoples (CIDOB), launched a policy to protect vulnerable peoples and, to that end, established the Inter-ministerial Commission on Highly Vulnerable Indigenous Peoples, which devised an emergency plan for the Yuqui people. The Vice-Minister of Land has given priority to addressing the needs of the Yuqui, Araona, Ayoreo and Uru Chipaya peoples.

49.         As part of efforts to protect highly vulnerable indigenous peoples, in 2006, the Government approved the declaration of “an exclusively reserved, inviolable and fully protected area” inside Madidi National Park in the Amazonian highland of Bolivia that coincides with the traditional territory of the Toromona, who are a people living in isolation (Administrative Decision No. 48/2006 of the National Service for Protected Areas attached to the Ministry of Rural Development, Farming and the Environment). Following the example of other countries in the region, the declaration of an inviolable area guarantees respect for such peoples’ decisions regarding their relations with the rest of society, and includes such measures of protection as the prohibition of any settlement other than that of the peoples living inside the inviolable area, any unwanted contact with the Toromona people and any activity related to prospecting for or exploiting the area’s natural resources.

F.    Captive communities

50.         In some regions of Bolivia, indigenous communities continue to be subjected to various forms of servitude or forced labour, which is understood as unpaid personal service and compulsory labour obtained under coercion or fraud, including improper hiring practices (enganche) and debt bondage. This is the situation of indigenous workers (mostly of Quechua and Guaraní origin) involved in sugar-cane harvesting in the department of Santa Cruz, those held in debt bondage in connection with Brazil nut production in the northern Amazonian region and the “captive communities” of Guaraní living on haciendas in the Chaco region. These situations, which were thought to have vanished following the agrarian reform of the 1950s, are evidence of the disquieting persistence of semi-feudal production relationships that are held in place by vertical power structures at the local level and by the lack of a State presence.

51.         In the large haciendas of the Bolivian Chaco, the Guaraní indigenous population has been subjected to a system of exploitation and slavery-like conditions since the late nineteenth century. More than 10 million of the 13 million hectares of land comprising this region - the traditional territory of the Guaraní - have been bought up, mostly by livestock breeders. The agrarian reform did not affect the system of relations that prevailed in the east, in the Chaco and in the north, thus perpetuating relations of servitude through a variety of formulas: pongueaje (compulsory unpaid domestic service), enganche (improper hiring practices) and debt bondage. Such relations continue to this day in certain medium and large-sized properties that are characterized by low levels of technology and productivity, and entire communities remain subjected to a system of servitude that prevails in agricultural and/or stockbreeding haciendas in exchange for paltry wages. According to International Labour Office estimates, between 5,100 and 7,200 Guaraní are subjected to such servile arrangements.

52.         As a result of the efforts undertaken by various NGOs and those of the Roman Catholic Church, the situation of these Guaraní families began to be denounced in the late 1990s, and projects were launched to free families through the purchase of land that they could work for their own benefit and through the implementation of community-based development projects. Guaraní organizations have also taken the initiative of denouncing this situation. The Special Rapporteur visited one of the freed Guaraní communities and was able to learn first-hand about their present and past situation, while noting that there were still many instances in which this indentured population have yet to be freed.

53.         In November 2005, following an exhaustive investigation, the Ombudsman found that there had been violations of labour rights, the right to land, the right to access to justice and other human rights of the captive Guaraní. In response to these cases, in October 2007, the executive branch established the Inter-ministerial Council for the Eradication of Servitude, Forced Labour and Other Similar Arrangements. The 2007-2008 Transitional Inter-ministerial Plan for the Guaraní People is designed to guarantee the rights of the Guaraní held captive in the Bolivian Chaco, give impetus to the territorial reconstitution of the Guaraní nation and promote development projects. In December 2007, the Government granted the Guaraní people of Chiquisaca (the communities of Huacareta, Ingle, Machareti and Muyupampa) 180,000 hectares of land under the Community-Based Agrarian Reform Renewal Act, which stipulates that evidence of a situation of servitude is cause to proceed to the expropriation of the lands in question by the State and, subsequently, to transfer their title to the indigenous communities.

54.         The situation of the rights of the Guaraní held captive in the Bolivian Chaco was the subject of a recommendation by the Permanent Forum on Indigenous Issues that was included in the report on its seventh session (21 April-2 May 2008). In it, the Permanent Forum states that it “has learned from indigenous peoples’ communications, which have been corroborated by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, that in the Chaco region there are Guaraní communities in a practical state of slavery” (E/C.19/2008/13, para. 156). The Permanent Forum also states that it “strongly supports the efforts of the current Government of Bolivia ... to discontinue this enslaving practice and return indigenous lands to their lawful owners, the Guaraní themselves”.

G.    Social and development policies

55.         In order to promote food security and sovereignty and to replace the existing mode of development that is based largely on commercial and industrial agriculture intended for export, the Government launched the National Development Plan, a central component of which is the “Rural, farming and forestry revolution”. One of the aims of this policy is to change the structure of land tenure so as to avoid unsustainable uses and inequitable distribution of land.

56.         It is worth noting that initiatives to promote the local development of the indigenous communities have also included efforts made by community enterprises, of which several successful examples may be mentioned: the National Quinoa Producers Association (ANAPQUI), which is active in the highlands of the departments of Oruro, Potosí and La Paz; and the El Ceibo Federation of Cooperatives in the upper Beni, which is intercultural in nature and exports cacao and certain derivative products. Pioneering initiatives have also been taken in relation to the forest industry, such as the BOLFOR II project, which has developed community-based, social, forestry organizations (OFCS) in different parts of the country.

1.    The coca issue

57.         As part of its development policies, one of the thrusts of the current Administration has been the revaluation and utilization of the coca leaf, including its processing. The production and marketing of coca leaves is currently prohibited under article 26 of the 1961 United Nations Single Convention on Narcotic Drugs. However, article 14, paragraph 2, of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances recognizes that measures to eliminate illicit crops “shall respect fundamental human rights and shall take due account of traditional licit uses, where there is historic evidence of such use”.

58.         At the end of the 1990s, during the period known as the “War on Drugs”, the “zero coca” policy, whose objective was the eradication of surplus crops, led to social clashes and the militarization of some areas of cultivation, notably in the tropical region of Cochabamba. The new revaluation policy of the Government now promotes the legal coca market by redefining the lawful growing area from 12,000 hectares to 20,000 hectares (reducing surplus cultivation by 6,000 hectares) and developing an eradication strategy in cooperation with the coca-grower unions.

2. Education policy

59.         Bolivia has for many years been taking steps to implement a bilingual and intercultural education policy in the indigenous communities, which was strengthened beginning in 1994 by the Education Reform Act (No. 1565). The draft new Constitution now recognizes the right to “intracultural, intercultural and multilingual” education (art. 27, para. 12), whose objective is to “eliminate illiteracy through programmes that correspond to the current cultural and linguistic situation of the population” (art. 84).

60.         The Act proposes the development of the native languages and their official acceptance in the highlands and lowlands, accompanied by the development of vocabularies, criteria for the official acceptance of Aymara, Quechua and Guaraní, the development of native language teaching materials, the compiling of dictionaries, etc. It also proposes new curricula for the plurinational education system, general guidelines concerning the use of native languages, the development of teaching materials in languages such as Tsimane and Tacana and the recording, to date, of the alphabets of 22 native languages.

61.         There have been a number of successful and positive experiences, such as the Kawsay Indigenous Intercultural University (UNIK) in the department of Oruro, whose curriculum is tailored to the needs and traditional technologies of the Andean region. In 2001, the Public University of El Alto - a city with a predominantly Aymaran population - was established. Efforts are also being made in the areas of bilingual intercultural instruction in regular institutes of higher learning; the design and development of curricula and teaching materials; and the establishment of the Native Peoples’ Education Councils.

62.         Nevertheless, complaints have been received of the failure to adapt the national education system to the traditional indigenous cultures and world view, and of the poor results achieved to date. According to the World Bank, school performance was 12 per cent lower among indigenous children than among non-indigenous children, and the average increase for each year of schooling is lower among indigenous than among non-indigenous children.

3. The right to health

63.         It is calculated that 80 per cent of the indigenous population does not have access to health facilities. Among the causes for the indigenous population’s limited access to health services is social exclusion, including factors of both discrimination and self-exclusion on the basis of indigenous origin.

64.         The new Government has promoted a policy of “intercultural health”, whose components include the adaptation of public health services to traditional indigenous medicine, including the strengthening of traditional medicine and the use of traditional plants. For its part, the Vice-Ministry of Traditional Medicine and Interculturalism, which comes under the Ministry of Health, has promoted a series of agreements with indigenous organizations aimed at incorporating and facilitating access to traditional indigenous medicine and to supporting the National Council on Indigenous Health. The Government has also promoted the inclusion of practices that respect indigenous women’s customs relating to childbirth in the context of hospital care.

H.     The persistence of racism

65.         One of the most worrying human rights issues in Bolivia at the present time is the persistence of manifestations of racism against indigenous people. The social and political situation in the past few years has led to a resurgence of racially discriminatory expressions and practices in the country, often having to do with historical and geographical polarization between the Andean region and the lowlands of the northern and eastern parts of the country.

66.         In the course of his visit, the Special Rapporteur was concerned to note the prevalence of manifestations of racism against indigenous persons in the public discourse. Racist insults and attacks are aimed at indigenous persons at every level, from indigenous members of the Government and of the Constituent Assembly to ordinary indigenous peasant women in big cities. These racist attacks are also aimed at the most visible symbols of indigenous identity, as evidenced by the burning of whipalas (indigenous flags) in demonstrations organized by sectors opposed to the current Administration.

67.         Much of the responsibility for the rise of racist discourse in contemporary Bolivian society lies with certain social and political sectors in the eastern departments, including political parties and various civil pressure groups. These groups sometimes accompany their demands for autonomy and their legitimate claims in a democratic society by a lack of respect for the predominantly indigenous population and its equally legitimate aspirations to overcome the injustices to which it has historically been subjected.

68.         Responsibility for the resurgence of racism in public life also lies in part with the communication media, almost all of which are controlled by sectors opposed to the current Administration. Some indigenous organizations have complained that the real situation of indigenous people in Bolivia has been distorted and that veritable media campaigns have been mounted against their leaders. There have been episodes of racially-tinged political violence, especially in Beni, Santa Cruz and other eastern departments, resulting from current political tensions, having to do, inter alia, with processes for the recovery and recognition of indigenous territories. The indigenous organizations in the lowlands complain of a campaign to persecute indigenous leaders and organizations orchestrated by powerful groups that bring together business sectors, local authorities, civic committees and other groups, such as the Santa Cruz Youth Union.

69.         Particularly serious among the many cases compiled by the Special Rapporteur were the 2006 attacks against the participants in the Grand Assembly of the Guarayo People, as well as a series of attacks against Chiquitano indigenous leaders and other inhabitants of the towns of San Julián, Guarayos, San Ramón and San Javier, which involved the destruction of offices, vehicles and other equipment belonging to various branch offices of the Chiquitano Indigenous Organization.

70.         Another outbreak of violence occurred towards the end of 2007 during the last stages of the debate concerning the new Constitution and its approval, when a series of physical and verbal assaults of a racist nature were perpetrated against indigenous and peasant organizations in Sucre - headquarters of the Constituent Assembly - and even against indigenous members of the Assembly. These attacks included the destruction of the headquarters of the Chuquisaca Federation of Native Communities in August 2007 and that of the Chuquisaca indigenous women and workers in November of the same year.

71.         In some of these incidents, there is evidence of the involvement of public officials of the respective prefectures or municipalities opposed to the new Constitution. Likewise, there have been complaints concerning the participation of students and authorities from the local universities in setting up assault groups, in blatant violation of the principles of equality and respect for diversity that should underlie university ethics.

72.         In this connection, both the former and current Special Rapporteurs, Mr. Rodolfo Stavenhagen and Mr. James Anaya, have expressed concern in press releases dated 10 April 2008 and 29 May 2008, respectively, over the commission of discriminatory and racist acts towards the indigenous peoples of Bolivia. The former Special Rapporteur noted with concern and condemned “the recent attacks suffered by government officials and members of the Guaraní people in the Chaco region of Santa Cruz. The attacks have taken place in the

context of the ongoing process of recognition of the traditional territories of the Guaraní people, many of whose members still live under conditions of serfdom”. In addition, the current Special Rapporteur noted with concern and strongly condemned “the racist and discriminatory acts of violence, threats, and humiliations suffered by at least 20 indigenous people at the hands of groups intending to prevent the arrival of President Evo Morales to Sucre on May 24”. In addition, he expressed his alarm at “the violent acts of April 13 in El Chaco, Bolivia, which resulted in the injuries of some 40 people, including indigenous Guaraní, members of the Asamblea del Pueblo Guaraní, public officials and journalists who were in the community of Itacuatía to carry out the title clearance process of the ancestral territories of the Guaraní people”.

73.         The indigenous peoples’ struggle for equality and participation, following centuries of oppression and exploitation, has been interpreted by some sectors of the non-indigenous population and by some members of the political and economic elite, who have traditionally held the reins of power in the country, as a direct attack on their privileges and identity. There is a widespread perception circulating in some of the media that indigenous persons are seeking political power in order to establish an exclusivist indigenous State, from which all other Bolivians will be excluded. The indigenous organizations have themselves been accused of being racist and discriminatory towards the non-indigenous population (including whites, creoles and mestizos). While it is true that some radical indigenous groups have, on occasion, demonstrated their rejection of various non-indigenous sectors, at no time did the Special Rapporteur encounter racist sentiments (although he did encounter anti-racist convictions) among the responsible members and legitimate leadership of the many indigenous organizations of Bolivia, whether inside or outside the current Administration.

VI.    CONCLUSIONS

74.         The cultural and social identity of the indigenous peoples of Bolivia, which for so long was denied and repressed, is rapidly being transformed through processes of social mobilization, political participation and economic change, in which the indigenous peoples themselves have become key actors.

75.         Since coming to power in 2005, the Government has initiated profound political, legal and institutional reforms with the aim of reversing the situation of exclusion and marginalization of the predominantly indigenous population in the context of a new State model. Some of these reforms have met with opposition from some social, political and economic sectors, particularly in the eastern departments, leading to the state of crisis in which the country currently finds itself. The confrontation between these sectors and the central Government has its roots in historical models of differentiation between the various regions and peoples of Bolivia. This has created a very disturbing rise in racism, including physical and verbal assaults against indigenous leaders and human rights defenders.

76.         The draft new Constitution approved by the Constituent Assembly in December 2007 reflects the intention to redefine the relationship between the State and the indigenous peoples based on the premise of the multicultural and plurinational nature of Bolivian society. The recognition of the rights of the indigenous peoples in the draft text takes full account of the provisions of ILO Convention No. 169 and of the United Nations Declaration on the Rights of Indigenous Peoples, which have already been incorporated into domestic law, as well as other international norms on the subject.

77.         The main challenges to the enjoyment of the rights of the indigenous peoples in Bolivia are access to land and recognition of their traditional territories, in both the Andean region, which is characterized by the scarcity and fragmentation of indigenous land ownership, and the low-lying Amazonian, Chaco and eastern regions, where indigenous territories are threatened by the powerful interests of the farming and forestry industries. The lack of access to land and territory perpetuates low levels of human development, social exclusion and other phenomena affecting the majority of indigenous communities.

78.         The environmental pollution of many indigenous territories as a consequence of mining operations, especially in Oruro and Potosí, and of hydrocarbon production in the Chaco and Amazonian regions, has not been subject to effective environmental control by the competent authorities, nor has it given rise to the proper consultation procedures to which the indigenous peoples are entitled. Instead, it has posed serious problems to the health and traditional economic activities of the indigenous communities. Despite the many complaints submitted to this effect, there is a reported failure to provide redress and compensation by those responsible for the polluting activities.

79.         Urgent attention must be given to eliminating persistent servitude and forced labour and the holding captive of some indigenous communities in the country, which are vestiges of historic practices of landowner domination, as in the case of the Guaraní people in the Chaco. By way of a solution, the Government is proceeding to the reversion of properties where such conditions exist and to the restoration of the lands to their legitimate indigenous owners.

80.         The gradual encroachment on lowland indigenous territories as a result of the extension of agribusiness, the exploitation of natural resources and an influx of settlers from other regions of the country has left some indigenous peoples in a particularly vulnerable position. The Yuqui and Ayoreo, and other peoples with whom contact has been established only recently or who live in isolation, are experiencing a major social and cultural upheaval and are frequently the victims of discrimination in their dealings with other social sectors.

81.         Bolivia is currently faced with the challenge of building a pluralistic, intercultural, participatory, inclusive and democratic society. All sectors of the country - indigenous and non-indigenous - now have the opportunity and the responsibility to contribute to this historic process without resentment or hatred. If this is achieved in a peaceful and tolerant manner and with a spirit of solidarity and mutual comprehension, all Bolivians will gain from it.

VII.    RECOMMENDATIONS

A.    Legislation and institutional structure

82.         The Special Rapporteur recommends that the National Congress of Bolivia should carry out the legislative reforms needed to regulate the exercise of indigenous peoples’ rights as recognized in the draft new Constitution and in the United Nations Declaration on the Rights of Indigenous Peoples, which has the status of domestic law. Priority should be given to the regulation of indigenous autonomy and administration of justice, as well as to the harmonization of sectoral legislation with indigenous peoples’ rights.

83.         With regard to the exercise of indigenous self-determination and autonomy, the State authorities must take indigenous peoples’ traditional structures of government and territorial organization into account when formulating and implementing public policy. The State might give consideration to redefining political and administrative divisions at the local and regional levels in order to facilitate efforts to reconstitute indigenous territories and forms of government.

84.         The Special Rapporteur recommends, in particular, that departmental and local authorities should develop their own public policies relating to the indigenous peoples, in consultation with the authorities and organizations representing the peoples concerned and in strict adherence to the criteria set forth in the United Nations Declaration on the Rights of Indigenous Peoples and ILO Convention No. 169.

85.         The Special Rapporteur recommends expediting training for Bolivian public authorities and officials, especially judges, magistrates and other agents of justice, in the legal norms relating to indigenous peoples’ rights.

86.         Steps should be taken to strengthen the institutional structure and activities of the Indigenous Rights Mainstreaming Unit and the Community-Based Policy Department of the Ministry of the Presidency with a view to effectively coordinating public policy in areas of direct concern to the indigenous peoples, including the implementation of the recommendations included in the present report and the decisions and recommendations of other human rights bodies and mechanisms.

B.    Lands, territories and natural resources

87.         The Special Rapporteur recommends that special priority should be accorded to the agrarian land regularization process under the new Community-Based Agrarian Reform Renewal Act (No. 3545), paying particular attention to the titling of the indigenous TCOs, in both the lowlands and the highlands. To that end, the Government should provide the relevant institutions with the human and financial resources needed, drawing on international cooperation where possible.

88.         Particular attention should be given to implementing the regulations concerning consultation and preparation of environmental impact studies in relation to the exploration and exploitation of natural resources in indigenous lands and territories. The relevant authorities should ensure that new contracts with private companies guarantee respect for indigenous rights in accordance with the new legislation in force.

89.         Enterprises operating in Bolivia should draw up and implement clear and precise guidelines for their operations to exploit natural resources in indigenous territories, including indigenous peoples’ right to participation and consultation, taking into account existing legislation and the international norms and standards established by the international financial institutions in relation to indigenous peoples.

90.         The relevant authorities should, as a matter of urgency, carry out a general study on the pollution of the indigenous territories in the country and, in consultation with the communities affected, implement such measures of inspection, relief, redress, compensation, prevention and punishment as may be necessary.

91.         The Special Rapporteur recommends that the competent authorities of Bolivia and Brazil should, in a spirit of open cooperation, take all necessary measures to ensure consultation with the indigenous communities that will be affected by the hydrology projects along the Madeira River on both sides of the border in order to avoid any unnecessary infringement of their rights as a result of such projects.

C.     Racial discrimination

92.         The Special Rapporteur makes a special appeal to public authorities at all levels and to political parties, indigenous organizations, civic organizations, the media, academic institutions and other political and social sectors, to refrain from any manifestation of discrimination towards persons and groups on the basis of their indigenous origin and to launch a sincere and wide-ranging debate in Bolivian society with the aim of enhancing mutual understanding and interaction between the various communities and nations of the country.

93.         The Special Rapporteur recommends that the authorities should strengthen their policies to combat all forms of discrimination. As part of these policies, the Government might implement a national plan to combat racism, racial discrimination and xenophobia, following the principles of the Durban Declaration and Programme of Action.

94.         It is recommended that the Government should promote efforts to define racial discrimination as a punishable offence in Bolivia’s domestic law, as well as adopt specific legislation to combat discrimination in all spheres.

95.         The Special Rapporteur suggests that the Government should encourage reflection on the responsibility of the public or private media in combating racism and racial discrimination. The various media should adopt a code of conduct prohibiting all forms of discrimination.

96.         The Special Rapporteur suggests that the Government of Bolivia should consider the possibility of inviting the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance to carry out an official visit to the country.

D.    Particularly vulnerable groups

97.         The Special Rapporteur recommends that the Government should, as a matter of priority, strengthen measures for the suppression of all forms of servitude and forced labour in the country, with the technical assistance of ILO and other relevant agencies and organizations.

98.         The Special Rapporteur recommends that the Government should strengthen intersectoral efforts to support the Yuqui people and other peoples in a highly vulnerable situation, with a view to the development of coordinated and systematic action to safeguard the rights of these peoples, with particular emphasis on the areas of health and territorial protection.

E.    The situation of human rights defenders

99.         The Special Rapporteur recommends that attacks against leaders of indigenous organizations and human rights defenders should continue to be investigated and punished, and that the police should afford the necessary protection to such persons in the event of threats or attacks against them. In particular, he recommends that an exhaustive investigation should be conducted into the possible responsibility of the public authorities for such attacks, and that appropriate disciplinary measures should be taken.