Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Peru (Ratification: 1994)

1. The Committee notes with interest the Government's first report on the application of the Convention, which is being examined in detail in a request addressed directly to the Government. It hopes the Government will provide full information on the questions raised therein, as the situation of the indigenous peoples of Peru is quite complex.

2. Article 11 of the Convention. The Committee also refers to the observation made this year under Convention No. 29, concerning allegations of forced labour imposed on indigenous peoples in the country.

3. Land rights under the Convention. The Committee notes that the Governing Body concluded, at its 273rd (November 1998) Session, consideration of a representation submitted under article 24 of the Constitution, on the application of this Convention. This representation had been submitted by the General Confederation of Workers of Peru (Confederación General de Trabajadores del Péru) (CGTP). It was submitted and examined before the Committee could examine the Government's first report following ratification.

4. The representation alleged, to summarize in brief, that Act No. 26845 of 26 July 1997, the Land Titling Act for the Rural Communities of the Coastal Region, violated both the letter and the spirit of the Convention, as well as of the Peruvian Constitution and other legislation, by allowing a portion of the inhabitants of these rural communities -- mostly composed of indigenous peoples covered by the Convention -- to decide to sell to individuals land which is in fact owned by the community as a whole. It stated that this violated the very essence of the Convention and was contrary to its basic concepts such as respect for these peoples, the guarantee that they would have the right to participate in decision-making on matters affecting them, and the need to maintain their cultural identities. The Government replied that this legislation in fact merely consecrated in law a situation of fact, that these lands were already held as individual parcels, and that individual ownership was a better guarantor of economic development in this region.

5. The Governing Body concluded that there is a difficult situation in the country arising from the several different ways in which the peoples covered by the Convention are defined, and the different rights that they have compared to each other. It recalled that Article 13 of the Convention provides that "governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands ... which they occupy or otherwise use, and in particular the collective aspects of this relationship". It also recalled that Article 17, paragraph 2, of the Convention provides that these peoples "shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community", and found that there was no indication that such consultation had taken place. It recalled that the ILO's experience was that, when lands held collectively by indigenous and tribal peoples are divided and assigned to individuals or those who are not members of their communities, the exercise of their rights by the community or the indigenous peoples tends to be weakened and, in general, they ultimately lose all or most of their lands as well. The Governing Body found that, while it was not its function to determine whether collective or individual property was the most appropriate arrangement for indigenous or tribal peoples in any given situation, the Conference had decided in adopting the Convention that involving these peoples in the decision as to whether this form of ownership should change was extremely important. It asked the Government to include detailed information on the measures taken to apply these Articles of the Convention in its reports under article 22 of the Constitution.

6. The Committee endorses the conclusions and recommendations of the Governing Body (which went into greater detail than outlined here). It calls upon the Government to examine the results of this representation, and to provide detailed information in its next report on how it is carrying out the conclusions of the Governing Body on this representation.

7. Mineral exploitation -- Article 15. The Committee understands that a large number of grants of permission for mineral exploration and exploitation in regions inhabited by indigenous peoples have been accorded in the last three years. Please provide detailed information on the consultations that took place with these peoples in this respect, on the legislation and rules governing such consultation, on the studies that were carried out concerning the impact on these communities of this exploration and exploitation, and of the arrangements being made so that the communities concerned share in the management and benefits of these operations, as required by this Article.