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Decree No. 5051, 19 April 2004

Original Language Title: Decreto nº 5.051, de 19 de Abril de 2004

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DECREE NO. 5,051, OF April 19, 2004

Promults the Convention No. 169 of the International Labor Organization-ILO on Indigenous Peoples and Tribals.

THE PRESIDENT OF THE REPUBLIC, in the use of the assignment that gives him the art. 84, inciso IV, of the Constitution,

Whereas the National Congress adopted, by means of the Legislative Decree no 143, of June 20, 2002, the text of the Convention no 169 of the International Labour Organization- ILO on Indigenous Peoples and Tribals, adopted in Geneva, on June 27, 1989;

Considering that the Brazilian Government deposited the instrument of ratification with the ILO Executive Director on July 25 of 2002;

Considering that the Convention entered into international force, on September 5, 1991, and, for Brazil, on July 25, 2003, pursuant to its art. 38;

DECRETA:

Art. 1º The Convention on the 169 of the International Labor Organization-ILO on Indigenous Peoples and Tribals, adopted in Geneva, on June 27, 1989, apensa by copy to the present Decree, it shall be executed and fulfilled as entirely as it contains.

Art. 2º Are subject to the approval of the National Congress any acts that may result in revision of the said Convention or that carries charges or gravy commitments to the national heritage, in the terms of the art. 49, inciso I, of the Federal Constitution.

Art. 3º This Decree comes into force on the date of its publication.

Brasilia, April 19, 2004; 183º of Independence and 116º of the Republic.

LUIZ INACIO LULA DA SILVA

Celso Luiz Nunes Amorim

CONVENTION No 169 OF THE ILO ABOUT PEOPLES INDIGENOUS AND TRIBALS

The General Conference of the International Labour Organization,

Convocated in Geneva by the Administrative Council of the International Labour Repartition and having there is meeting on June 7, 1989, at its septuagth sixth session;

Observing the international norms set out in the Convention and Recommendation on Indigenous and tribal populations, 1957;

Remembering the terms of the Universal Declaration of Human Rights, the International Covenant of Economic, Social and Cultural Rights, of the International Covenant of Civil and Political Rights and the numerous international instruments on the prevention of discrimination;

Considering that the evolution of international law since 1957 and the overcoming changes in the situation of indigenous and tribal peoples in all regions of the world make it advisable to adopt new international norms in that matter, in order to eliminate the guidance for assimilation of the previous norms;

Recognizing the aspirations of these peoples to take control of their own institutions and forms of life and their economic development, and maintain and strengthen their identities, languages, and religions, within the framework of the states where they live;

Observing that in diverse parts of the world these peoples cannot enjoy fundamental human rights in the same degree as the rest of the population of the states where they live and that their laws, values, customs, and perspectives have been suffering erosion frequently;

Remembering the particular contribution of Indigenous and tribal peoples to cultural diversity, social and ecological harmony of humanity and international cooperation and understanding;

Observing that the following provisions have been established with the collaboration of the United Nations, the United Nations Organization for Agriculture and Food, the United Nations Educational, Scientific and Cultural Organization, and the World Health Organization, as well as the Institute Indigenist Inter-American, at the appropriate levels and in their respective spheres, and that there is the purpose of continuing such collaboration in order to promote and ensure the application of these provisions;

After having decided adopt various proposals on the partial revision of the Convention on Indigenous and Tribal populations, 1957 (paragraph 107), the subject that constitutes the fourth agenda item of the session, and

After having decided that these proposals should take the form of an International Convention revising the Convention on Indigenous Peoples and Tribals, 1957, adopts, on this twenty-seventh day of June one thousand nine hundred and eighty-nine, the following Convention, which shall be called the Convention About the Indigenous Peoples and Tribals, 1989:

PART 1-GENERAL POLICY

Article 1º

1. The present Convention applies:

to) to tribal peoples in independent countries, whose social, cultural and economic conditions distinguish them from other sectors of the national collective, and which are governed, total or partially, by its own customs or traditions or by special legislation;

b) to peoples in independent countries, considered indigenous by the fact that they are descended from populations that inhabited the country or a region geographical belonging to the country at the time of conquest or colonization or the establishment of the current state borders and which, whatever its legal situation, retain all its own social, economic, cultural institutions and policies, or part of them.

2. The awareness of their indigenous or tribal identity should be considered as the fundamental criterion for determining the groups to those who apply the provisions of this Convention.

3. The use of the term "peoples" in this Convention should not be interpreted in the sense of having any implication with respect to rights that may be conferred on that term in international law.

Article 2º

1. Governments should take responsibility to develop, with the participation of the peoples concerned, a coordinated and systematic action with a view to protecting the rights of these peoples and ensuring respect for their integrity.

2. Such action shall include measures:

a) that shall ensure the members of those peoples the enjoyment, under conditions of equality, of the rights and opportunities that national legislation outwards to the remaining members of the population;

b) that promote the full effectiveness of the social, economic and cultural rights of these peoples, while respecting their social and cultural identity, their customs and traditions, and their institutions;

c) that help the members of the peoples concerned to eliminate the socio-economic-economic differences that may exist between Indigenous members and the remaining members of the national community, in a manner compatible with their aspirations and forms of life.

Article 3º

1. Indigenous and tribal peoples should fully enjoy human rights and fundamental freedoms, without obstacles or discrimination. The provisions of this Convention shall be applied without discrimination to the men and women of those peoples.

2. No form of force or coercion should be employed that violates human rights and freedoms fundamental of the peoples concerned, inclusive of the rights contained in this Convention.

Article 4º

1. Special measures that are necessary to safeguard the people, the institutions, the goods, the cultures and the environment of the peoples concerned should be adopted.

2. Such special measures should not be contrary to the wishes expressed freely by the interested peoples.

3. The enjoyment without discrimination of the general rights of citizenship should not suffer any deterioration as a consequence of these special measures.

Article 5º

By applying the provisions of the present Convention:

a) should be recognized and protected the social, religious and spiritual cultural values and practices of the mentioned peoples and should be taken into due consideration the nature of the problems that they are presented to them, both collective and individually;

b) should be respected the integrity of the values, practices and institutions of these peoples;

c) should be adopted, with the participation and cooperation of the interested peoples, measures aimed at alleviating the difficulties that these peoples experience when facing new living and working conditions.

Article 6º

1. By applying the provisions of this Convention, governments should:

a) consult with interested peoples, upon appropriate procedures and, particularly, through their representative institutions, each time legislative or administrative measures susceptible to affect them directly;

b) establish the means by which interested peoples can participate freely, at least in the same extent as other sectors of the population and at all levels, in the adoption of decisions in effective institutions or administrative bodies and other nature responsible for the policies and programs that are concernable to them;

c) to establish the means for the full development of the peoples ' institutions and initiatives and, in appropriate cases, to provide the necessary resources for that purpose.

2. Consultations held in the implementation of this Convention should be effectuated in good faith and in an appropriate manner to the circumstances, with the aim of reaching an agreement and getting consent about the proposed measures.

Article 7º

1. Interested peoples should have the right to choose their own priorities with regard to the development process, to the extent that it affects their lives, beliefs, institutions and spiritual well-being, as well as lands that occupy or use in some way, and to control, as far as possible, their own economic, social and cultural development. In addition, those peoples are expected to participate in the formulation, application and evaluation of national and regional development plans and programs susceptible to affect them directly.

2. The improvement of living and working conditions and the level of health and education of the interested peoples, with their participation and cooperation, should be prioritised in the global economic development plans of the regions where they live. Special development projects for these regions should also be drawn up in such a way as to promote this improvement.

3. Governments should ensure that, whenever it is possíve1, studies are to be carried out to the peoples concerned with the aim of assessing the social, spiritual and cultural incidence and on the environment that developmental activities, predicted, may have on these peoples. The results of these studies should be considered as fundamental criteria for the implementation of the activities mentioned.

4. Governments should adopt measures in cooperation with the peoples concerned to protect and preserve the environment of the territories they inhabit.

Article 8º

1. By applying national legislation to interested peoples should be taken into due consideration their customs or their customary law.

2. These peoples should have the right to conserve their customs and institutions of their own, provided that they are not incompatible with the fundamental rights defined by the national legal system nor with internationally recognized human rights. Where it is necessary, procedures should be established to remedy the conflicts that may arise in the application of this principle.

3. The application of paragraphs 1 and 2 of this Article shall not prevent the members of these peoples from exercising the recognized rights for all citizens of the country and shall assume the corresponding obligations.

Article 9º

1. To the extent that this is compatible with the national legal system and with internationally recognized human rights, the methods to which interested peoples traditionally resort to the repression of offences should be respected. committed by its members.

2. The authorities and courts requested to rule on criminal matters should take into account the customs of the peoples mentioned regarding the matter.

Article 10

1. When criminal sanctions are imposed by the general legislation to members of the mentioned peoples, they should be taken into account their economic, social and cultural characteristics.

2. Preference should be given to types of punishment others than incarceration.

Article 11

The law should prohibit the imposition, the members of the concerned people, of compulsory personal services of any nature, whether remunerated or not, except in the cases provided for by law for all citizens.

Article 12

Interested peoples should have protection against the violation of their rights, and be able to initiate legal procedures, be it personally, be it upon your representative bodies, to ensure the effective respect of these rights. Measures should be taken to ensure that members of these peoples can understand and make themselves understood in legal procedures, making it easier for them, if it is necessary, interpreters or other effective means.

PART II -LANDS

Article 13

1. By applying the provisions of this part of the Convention, the governments should respect the special importance that for the cultures and spiritual values of the peoples concerned possesses their relationship with the lands or territories, or with both, according to the cases, which they occupy or use in some way and, particularly, the collective aspects of that relationship.

2. The use of the term "lands" in Articles 15 and 16 should include the concept of territories, which covers the whole of the habitat of the regions that interested peoples occupy or use in some other way.

Article 14

1. It should be recognized to the peoples interested in the rights of ownership and possession over the lands they traditionally occupy. In addition, in the appropriate cases, measures should be adopted to safeguard the right of interested peoples to use land that is not exclusively occupied by them, but to which they have traditionally had access to their traditional and subsistence activities. In that particular, particular attention should be paid to the situation of nomadic peoples and itinerant farmers.

2. Governments should adopt the measures that are necessary to determine the lands that the peoples interested traditionally occupy and ensure the effective protection of your property rights and possession.

3. Appropriate procedures should be instituted within the national legal system to remedy land claims formulated by the interested peoples.

Article 15

1. The rights of peoples interested in the existing natural resources on their land should be specially protected. These rights cover the right of such peoples to participate in the use, administration and conservation of the mentioned resources.

2. In the event of belonging to the State the ownership of the ores or the subsoil resources, or of having rights over other resources, existing on land, governments should establish or maintain procedures with a view to consult with interested peoples, in order to determine whether the interests of those peoples would be harmed, and in which measure, before undertaking or authorizing any program of prospecting or exploiting the existing resources on their land. Interested peoples should participate whenever it is possible for the benefits that these activities to produce, and receive equitable compensation for any damage they may suffer as a result of these activities.

Article 16

1. With the reservation of the provisions in the following paragraphs of the present Article, the peoples concerned shall not be transladded from the lands they occupy.

2. When, exceptionally, the trans-side and resettlement of these peoples are considered necessary, they will only be able to be effected with the consent of the same, granted freely and with full knowledge of cause. When it is not possible to obtain your consent, the translate and resettlement can only be carried out after the completion of appropriate procedures established by the national legislation, including public enqueuments, when it is appropriate, in the which interested peoples have the possibility to be effectively represented.

3. Whenever it is possible, these peoples should have the right to return to their traditional lands as soon as they cease to exist the causes that have motivated their trans-turn and resettlement.

4. Where the return is not possible, as is determined by agreement or, in the absence of such agreements, by appropriate procedure, such peoples shall receive, in all cases where possible, land whose quality and whose legal status be at least equal those of the lands they previously occupied, and that allow them to cover their needs and ensure their future development. When interested peoples preact to receive compensation in cash or in goods, such compensation should be granted with the appropriate guarantees.

5. They should be fully indemnished for persons transladed and resettled for any loss or damage they have suffered as a consequence of their displacement.

Article 17

1. The modalities of transmitting the rights on land between the members of the interested peoples established by those peoples shall be respected.

2. Interested peoples should be consulted whenever it is considered its ability to divest from their land or otherwise convey their rights to those lands out of their community.

3. It should be prevented that people from such peoples may take advantage of the customs of the same or the unknowing of the laws by their members to arrogate to the property, possession or use of the lands to them belonging.

Article 18

The law should provide for appropriate sanctions against all unauthorized intrusion on the lands of the peoples concerned or against all unauthorized use of them by persons alhedic to them, and the governments should adopt measures to impetuate such infractions.

Article 19

National agrarian programs should guarantee interested peoples equivalent conditions to those enjoyed by others sectors of the population, for the purposes of:

a) the allocation of land to those peoples when the lands of those they disclenched are insufficient to guarantee them the elements of a normal existence or to face their possible numerical growth;

b) the granting of the means necessary for the development of the lands that these peoples already possess.

PART III-CONTRACTING AND CONDITIONS OF EMPLOYMENT

Article 20

1. Governments should adopt, within the framework of national legislation and in cooperation with interested peoples, special measures to ensure workers belonging to those peoples an effective protection in relation to hiring and conditions of employment, to the extent that they are not effectively protected by the legislation applicable to workers in general.

2. Governments should do what is in their power to prevent any discrimination between the workers belonging to interested peoples and the remaining workers, especially as to:

a) access to employment, inclusive of skilled jobs and measures for promotion and ascent;

b) equal pay for work of equal value;

c) medical and social care, safety and hygiene at work, all the benefits of social security and too much benefit derived from employment, as well as the housing;

d) right of association, right to freely dedicate themselves to all union activities for lawful purposes, and right to celebrate collective agreements with employers or with employers ' organizations.

3. The measures adopted should ensure, particularly, that:

a) workers belonging to the interested peoples, including seasonal workers, eventual and migrant employees employed in agriculture or other activities, as well as those employed by labor contractors, enjoy the protection afforded by legislation and national practice to other workers from those categories in the same sectors, and are fully informed of their rights to with the labor legislation and the resources they dispose of;

b) workers belonging to these peoples are not subjected to hazardous working conditions for their health, in particular as a consequence of their exposure to pesticides or other toxic substances;

c) workers belonging to those peoples are not subjected to coercive hiring systems, including all forms of servitude by debt;

d) workers belonging to these peoples enjoy equal opportunity and treatment for men and women in employment and protection against sexual acossation.

4. Special attention should be paid to the creation of appropriate work inspection services in the regions where workers belonging to the interested peoples exercise salaried activities in order to ensure compliance with the provisions of this part of this Convention.

RURAL INDUSTRIES

Article 21

Members of the interested peoples should be able to have professional means of training at least equal to those of the remaining citizens.

Article 22

1. Measures should be adopted to promote the voluntary participation of members of the peoples interested in general application vocational training programmes.

2. When vocational training programmes of existing general application do not meet the special needs of interested peoples, governments should ensure, with the participation of these peoples, that they are placed at the disposal of the same programs and special means of training.

3. Such special training programmes should be based on economic surroundings, social and cultural conditions and the concrete needs of interested peoples. Every survey in this particular should be carried out in cooperation with those peoples, which should be consulted on the organization and operation of such programs. When it is possible, such peoples shall progressively assume responsibility for the organization and operation of such special training programs, if they so decide.

Article 23

1. Handicrafts, rural and community industries and traditional activities and related to the livelihood economy of interested peoples, such as hunting, fishing with traps and harvesting, should be recognized as factors important from the maintenance of their culture and self-sufficiency and economic development. With the participation of these peoples, and whenever it is appropriate, governments should ensure that they are strengthened and fostered such activities.

2. At the request of the interested peoples, they should facilitate themselves, when it is possible, appropriate technical and financial assistance that takes into account the traditional techniques and cultural characteristics of those peoples and the importance of the sustained and equitable development.

PART V-SOCIAL SECURITY AND HEALTH

Article 24

Social security regimes should be progressively extended to peoples interested and applied to the same without discrimination at all.

Article 25

1. Governments should ensure that they are placed at the disposal of the concerned peoples appropriate health services or provide such peoples with the means to enable them to organize and provide such services under their own responsibility and control, in order to be able to enjoy the maximum possible level of physical and mental health.

2. Health services should be organized, as far as possible, at the community level. Such services should be planned and administered in cooperation with interested peoples and take into account their economic, geographical, social and cultural conditions, as well as their methods of prevention, curative practices and medicines traditional.

3. The health care system should give preference to training and employment of local community sanitary staff and focus on primary health care, while maintaining close links with the remaining levels of assistance sanitary.

4. The provision of these health services should be coordinated with the other economic and cultural measures that are adopted in the country.

PART VI-EDUCATION AND MEDIA

Article 26

Desummer will be adopted measures to ensure members of the interested peoples the possibility of acquiring education at all levels, at least on a level playing field with the rest of the national community.

Article 27

1. Education programmes and services for interested peoples should be developed and implemented in cooperation with them in order to respond to their particular needs, and should cover their history, knowledge and techniques, their value systems and all their too many social, economic and cultural aspirations.

2. The competent authority should ensure the formation of members of these peoples and their participation in the formulation and implementation of education programs, with a view to progressively transferring to those peoples the responsibility for realizing such programs, when it is suitable.

3. In addition, governments should recognize the right of these peoples to set up their own institutions and means of education, provided that such institutions meet the minimum standards set by the competent authority in consultation with those peoples. They should be facilitated for them appropriate resources for that purpose.

Article 28

1. Whenever it is feasible, it should be taught to the children of peoples interested to read and write in their own indigenous language or in the most commonly spoken language in the group to which they belong. When this is not feasible, the competent authorities should consult with these peoples with views to adopt measures that will enable this goal to be achieved.

2. Desummer suitable measures to be adopted for ensure that these peoples have the opportunity to reach out to dominate the national language or one of the country's official languages.

3. Arrangements should be adopted to preserve the indigenous languages of interested peoples and to promote the development and practice of them.

Article 29

An aim of children's education of the interested peoples should be to provide them with general knowledge and skills that enable them to participate fully and in a level playing field in the life of their own community and in that of the national community.

Article 30

1. Governments should adopt measures in accordance with the traditions and cultures of the peoples concerned, in order to give them to know their rights and obligations especially in the respect of work and economic possibilities, education issues and health, social services and the rights derived from this Convention.

2. To this end, it should be called for, if it is necessary, written translations and the use of mass media in languages of these peoples.

Article 31

Desummer to be adopted measures of educational character in all sectors of the national community, and especially in those who are in more direct contact with peoples interested, with the aim of eliminating the prejudices that they could have with respect to these peoples. To that end, efforts should be made to ensure that the History books and too many teaching materials offer an equitable, accurate and instructive description of the societies and cultures of the interested peoples.

PART VII-CONTACTS AND COOPERATION ACROSS BORDERS

Article 32

Governments should adopt appropriate measures, including upon international agreements, to facilitate the contacts and cooperation between indigenous and tribal peoples across borders, inclusive of activities in the economic, social, cultural, spiritual and the environment areas.

PART VIII? ADMINISTRATION

Article 33

1. The governmental authority responsible for the matters that this Convention covers should ensure that there are any appropriate institutions or other mechanisms to administer the programs that affect the peoples concerned, and that such institutions or mechanisms dispose of the means necessary for the full performance of their functions.

2. Such programs should include:

a) the planning, coordination, execution and evaluation, in cooperation with the interested peoples, of the measures provided for in this Convention;

b) the proposal for legislative and other measures to the competent authorities and control of the implementation of the measures adopted in cooperation with interested peoples.

PART IX-GENERAL PROVISIONS

Article 34

The nature and scope of the measures that are adopted for in effect the present Convention shall be determined flexibly, taking into account the own conditions of each country.

Article 35

The application of the provisions of this Convention should not prejudice the rights and the guaranteed advantages to peoples interested in virtue of other conventions and recommendations, international instruments, treaties, or laws, lauds, customs or national agreements.

PART X-FINAL PROVISIONS

Article 36

This Convention revises the Convention on Indigenous Peoples and Tribals, 1957.

Article 37

The formal ratifications of the present Convention will be passed on to the Director General of the International Labour Repartition and by it registered.

Article 38

1. This Convention shall only bind the Members of the International Labour Organization whose ratifications have been registered by the Director-General.

2. This Convention will enter into force twelve months after the registration of the ratifications of two Members on the part of the Director-General.

3. Thereafter, this Convention will enter into force, for each Member, twelve months after the registration of its ratification.

Article 39

1. Every Member who has ratified this Convention will be able to report it after the expiration of a period of ten years counted from the entry into force upon an act communicated to the Director General of the International Labour Repartition and by it registered. The complaint will only take effect one year after the registration.

2. Every Member who has ratified this Convention and does not make use of the complaint faculty provided for by the preceding paragraph within the period of one year after the expiration of the ten-year period provided for by this Article, you will be obliged for a further period of ten years and you will subsequently be able to report this Convention by expiring each ten-year period, under the conditions laid down in the present Article.

Article 40

1. The Director General of the International Labour Party shall notify all Members of the International Labour Organization the record of all ratifications, declarations and denunciations communicated to it by the Members of the Organization.

2. When notifying the Members of the Organization the record of the second ratification that has been communicated to it, the Director-General shall draw attention from the Members of the Organization for the date of entry into force of the this Convention.

Article 41

The Director General of the International Labour Party shall communicate to the Secretary-General of the United Nations, for the purposes of registration, as per Article 102 of the Charter of the United Nations, the complete information regarding any ratifications, declarations and acts of denunciation that has registered in accordance with the previous Articles.

Article 42

Whenever deem necessary, the Board of Directors of the International Labour Repartition shall submit to the General Conference a report on the application of this Convention and shall decide on the opportunity to enrol on the agenda of the Conference to question of your total or partial review.

Article 43

1. If the Conference adopts a new Convention that fully or partially revise this Convention, and unless the new Convention dispossesses it contrary:

a) ratification, by a Member, of the new revised Convention will imply full entitlement, notwithstanding the provisions of Article 39 above, the immediate denunciation of this Convention, provided that the new revised Convention has entered into force.

b) from the entry into force of the Revised Convention, this Convention shall cease to be open to the ratification of the Members.

2. This Convention will continue in force, in any case in its current form and content, for the Members who have ratified it and that do not ratify the revised Convention.

Article 44

The versions english and french of the text of this Convention are equally authentic.