Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

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

1.  The Committee notes that the present comments only concern observations presented by a workers’ organization under article 23 of the Constitution, and do not concern the application of the Convention in general. The broader matters covered by the observation and direct request of 1998 remain valid, and the Committee reminds the Government that it should reply to these comments in its next report in accordance with article 22 of the Constitution.

2.  The Committee notes the submission from the Central Confederation of Workers of Peru (CUT) of 3 August 2000, alleging the non-observance of the Convention by the Peruvian Government. The Committee also notes the Government’s reply to the comments by the CUT, of 9 May 2000.

3.  The CUT indicates that the Government of Peru has issued Supreme Decree No. 17-99-AG, of 3 June 1999, which expropriates 111,656 hectares of the ancestral lands belonging to the Country Community of Santo Domingo de Olmos ("the Community"), an indigenous community in the Department and Province of Lambayeque. It points out that there are 18,000 community members with a community council elected by 118 delegates which represent the Community.

4.  The CUT states that the Government’s initial intention was to expropriate 46,000 hectares of community land, but that opposition from the community members prompted the Committee for the Promotion of Private Investment (COPRI) and the Ministry of Agriculture to expropriate a total of 111,656 hectares. The CUT asserts that the expropriated lands are to be conceded to foreign investors that intend to carry out a hydroelectric project.

5.  The Committee notes the provisions of Supreme Decree No. 17-99-AG, as well as Supreme Resolution No. 86 of 4 August 1931, which recognizes "the indigenous community of Olmos" and provides for their entry in the Official Register of the Section for Indigenous Affairs of the Ministry of Development. It also notes from the information supplied by the CUT that neither the Community nor the individual community members have been compensated for the confiscation of these lands.

6.  The Committee notes the Government’s reply of 9 May 2000 to the communication from the CUT. The Government indicates that, under Act No. 16101 of April 1966, the execution of irrigation works in the Pampas de Olmos in the Department of Lambayeque was declared to be in the public interest and of public benefit and that, subsequently, Supreme Decree No. 907-74-AG of September 1974 designated the Olmos Irrigation Project as a Special Project. As such, according to the Government, under Act No. 26440, the above Project was included in the process of the Promotion of Private Investment, regulated by Legislative Decree No. 674. The Government states that an area of 111,656 hectares of uncultivated land was subsequently identified as falling within the scope of the Project and that as a result, Supreme Decree No. 17-99-AG was issued in June 1999. The Decree states that "definitive studies for the Special Olmos Irrigation Project have been completed … which include irrigation projects and hydraulic energy systems designed to transfer waters from the Atlantic to the Pacific, channelling them and using them to generate energy, then distributing them for irrigation purposes in the valleys included under the scheme". Section 1 of the Decree changes the name of the earlier project to the Special Olmos Irrigation and Hydraulic Energy Project. Section 2 of the Decree approves the plans and report setting out the scope of the Project, along with the taking of the 111,656 hectares referred to above. Under its section 5, the Supreme Decree provides that the management of the Special Olmos-Tinajones shall enter the lands concerned in the relevant public register, in favour of the Special Olmos Irrigation and Hydraulic Energy Project, without prejudice to the right of ownership of third parties.

7.  The Government states that section 70 of the Political Constitution of Peru sets forth the right of ownership and that, in accordance with this section, "no one shall be deprived of their property, except for reasons declared by law to be in the interest of national security and public benefit, and subject to payment of just compensation, including compensation for possible damages sustained". The Government states that recognition of the community ownership of the land covered by the above Project could give rise to expropriation proceedings. However, it indicates that this procedure was not followed in the Community’s case, and that the inclusion of the 111,656 hectares in the Project do not constitute a taking. The Government also states that since section 5 of the Decree safeguards third parties’ ownership rights, if indigenous ownership of the lands concerned were established, the Community’s rights would not be affected.

8.  The Committee requests the Government to supply information on the efforts made to demarcate the ancestral lands of the Community, including the 111,656 hectares mentioned in Supreme Decree No. 17-99-AG, as well as copies of all deeds of ownership concerning the lands mentioned above. It also asks the Government to supply information on all modification made by the Special Project on Land Ownership (PETT) to the Official Land Register as regards the above lands. Finally, it requests the Government to supply information on any action brought by the Community or any of its members to claim ownership of the 111,656 hectares in question or to register ownership of these lands.

9.  Articles 6 and 7 of the Convention.  The Committee recalls that in giving effect to the provisions of the Convention, the Government must consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly. The peoples concerned shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly. The Committee requests the Government to send information on any prior consultations held with the Community before the issuing of the Decree in question. It also requests information on the mechanisms established to allow the Community to participate in the development of plans which affect them, including the Special Olmos Irrigation and Hydraulic Energy Project.

10.  Article 15.  The Committee recalls that the rights of indigenous peoples to the natural resources pertaining to their lands shall be specially safeguarded. The peoples concerned shall participate in the use, management and conservation of such resources, and in the benefits accruing from any activities of exploration or exploitation of such resources. Consequently, it requests the Government to send information on all measures taken or envisaged to ensure the participation of the Community in the use, management and conservation of the resources found on its lands, as well as in benefits brought by the Project and to compensate the Community for damages caused by the activities envisaged in the context of the Special Project.