Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

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

1. Article 1 of the Convention. Identification and self-identification. The Committee notes that, according to the Government’s report, Peru’s population, estimated at around 24 million inhabitants, is mainly mestizo (of mixed extraction) and that over 9 million Peruvians are indigenous, principally Quechua and Aymara, living in the Andean region. There are 42 ethno-linguistic groups residing in the Amazonian region of Peru, which covers 62 per cent of the national territory. These populations have cultural, economic and political characteristics that are distinct from other sectors of the national population. The Indian population is made up, not only of rural and indigenous communities, but also of remote settlements: groups that are in a situation of voluntary isolation, or with which contact is sporadic. The official languages are Spanish, Quechua (spoken by more than 3 million people), Aymara (350,000 speakers) and in the Amazonian region 40 languages, belonging to 16 linguistic families, are spoken. According to the report, there is a need for greater recognition of the right to their own identity of all those communities that do not explicitly identify themselves as native, indigenous or members of a specific linguistic group, in addition to the 1,265 rural and indigenous communities included in the State’s registers. In this regard, the Committee previously referred to the difficulties that arose from the various definitions and terms used to identify the populations covered by the provisions of the Convention: rural, indigenous and native populations and those living in the highlands, the forest and the edge of the forest. The Committee again suggests that the Government consider certain fundamental common criteria for the identification of the groups to which the Convention may apply, with an indication, for example, of the criteria used in the last census, and it requests information on the manner in which the criterion of "self-identification", set out in paragraph 2 of this Article, is applied.

2. Articles 2 and 33. Coordinated and systematic action to give effect to the provisions of the Convention with the participation of indigenous peoples. The Committee notes the various programmes referred to in the report, such as those being run by the National Commission of Andean, Amazonian and Afro-Peruvian Peoples (CONAPA), the Native Communities Programme of the Office of the Public Ombudsperson, which is responsible for the indigenous communities of the Amazonian region and the Bureau for Protected Natural Areas (IANP) of the National Institute for Natural Resources. It also notes the activities of other institutions, such as the Ministry of Energy and Mines. The Committee considers that, pursuant to Article 2 of the Convention, coordinated and systematic action, with the participation of indigenous peoples, is fundamental for the proper application of the Convention. The Committee therefore requests information on the efforts made to coordinate existing programmes with the participation of indigenous peoples at each stage, from planning to evaluation. Please indicate, for example, whether the indigenous peoples of the coast are represented on CONAPA and whether this, or any other body, has the capacity to prepare proposals and undertake general coordination functions.

3. Articles 6 and 7. Consultation and participation. The Committee notes that, prior to holding consultations, the national, regional and local indigenous organizations concerned with the issue in question are identified. Consultation is explicitly advocated in the regulations issued under the Act on protected natural areas (ANP). The establishment of an ANP guarantees the intangibility of the area and the customary rights of the resident population. The Committee notes with interest that the ANPs call upon the population to participate in the management committee and where there is diversity of ethnic groups, there is no discrimination between the various stakeholders, and interpreters are used. In the specific case of communal reserves, a special participation system is being developed. The Committee also notes that, according to the Government, the drawback of these processes is the high logistical cost of ensuring the informed participation of the population in general and of the indigenous peoples in particular. It notes with interest the efforts made in this regard and, taking into account the fact that consultation and participation are essential in underpinning the other provisions of the Convention, it hopes that the Government will continue endeavouring to extend consultation and participation to cover the other legislative and administrative measures likely to affect the indigenous peoples directly. The Committee would be grateful if the Government would provide information in its next report on the progress made, the results obtained and the difficulties encountered in this respect.

4. Article 11. Forced labour. The Committee notes the 2004 publication of the Programme on the Promotion of the ILO Declaration on Fundamental Principles and Rights at Work, entitled: "Forced Labour in Timber Cutting in the Peruvian Amazon". According to this publication, some 33,000 people, for the most part belonging to diverse ethnic groups inhabiting the Peruvian Amazon, are victims of forced labour. The study points out the existence of new areas of forced labour in the regions of Ucayali and Madre de Dios. In Ucayali, numerous indigenous communities are affected: Murunahuas (Chitonahuas), Masco-Pirus, Cashinahuas, Shanarahuas, Amahuakas, Kulinas, Mastinahuas, Chaninahuas, Ashkaninkas, Cashibo-Catataibo, Isconahua, Shibipos, Paratari y Capirushari (Ashaninka), Tahuamanu and other isolated communities from the Alto Purús basin. In Madre de Dios, indigenous communities are similarly affected in the province of Tahuamanu, the Rió los Amigos and the Rió las Piedras. The study notes that, in expanding their operations, the timber companies have come into contact with isolated groups, frequently resulting in epidemics and the extinction of these groups. According to sources cited in the study, between 50 and 60 per cent of the Nahuas have died. Among its recommendations, the report suggests the development of a plan of action for the elimination of forced labour in Peru. The Committee will continue to assess the situation more closely in its examination of the application of the Forced Labour Convention, 1930 (No. 29), but asks the Government to keep it informed on the plan of action that is adopted and its results.

5. Articles 13 and 14. Land rights. The Committee notes that 310 rural communities are registered annually and that 1,772 are awaiting registration. The title procedures for 139 indigenous communities from the forest are still pending and 85 per cent of them have sought the extension of the boundaries that are currently recognized. It also notes that the Special Project for Land Title and Legal Security (PETT) has completed the physical and legal review of the property rights of 1,700,000 lots, of which 700,000 have been confirmed in the land registers. In its previous comments, the Committee noted that section 11 of Act No. 26505 leaves open the possibility that market forces in regions with a high poverty level or which are rich in minerals and hydrocarbons may induce indigenous peoples to give up their traditional lands. Furthermore, it drew attention to section 6 of the above Act, which makes any judicial action subject to the procedures set out in the Code of Civil Procedure, which could constitute a disadvantage for certain indigenous communities with little knowledge of the functioning of judicial procedures. The Committee once again requests the Government to provide more detailed information on the manner in which the land titling procedure functions in practice, all the legal requirements to be met and the financial cost, if any, of the procedure. It also requests information on the requirements that must be met for communities to obtain recognition and registration so that they can assert their rights.

6. In its previous comments, the Committee noted the Second Report on the Situation of Human Rights in Peru by the Inter-American Commission on Human Rights (OEA/Ser.L/V/II.106-Doc. 59.rev.) of 2 June 2000, which refers to the PETT and describes the difficulties encountered by indigenous communities in asserting their land rights. The Committee once again hopes that the Government will take appropriate measures, in consultation with the peoples concerned, to identify and eliminate obstacles, including those of a procedural nature, to the realization of the rights set out under Article 14 of the Convention and that in its next report it will be able to supply information on the progress achieved.

7. In conclusion, with regard to land rights, the Committee once again requests the Government to provide information on the implementation of the recommendations contained in the report adopted by the Governing Body at its 273rd (November 1998) Session concerning a representation submitted by the General Confederation of Workers of Peru (CGTP) alleging that Act No. 26845 of 26 July 1997 (the Land Titling Act for the rural communities of the coastal region) allows the sale of community lands without previously seeking the authorization or opinions of the indigenous communities affected.

8. Article 15 of the Convention. Natural resources and consultation. On the one hand, the Committee notes that, according to the Government’s report, the State is sovereign with regard to the exploitation of natural resources, even where they are located in the territory of indigenous communities. On the other hand, it notes with interest the information prepared by the Ministry of Energy and Mines, annexed to the report, with regard to the application of the Convention. This includes educational presentations to promote an understanding of mining exploration and exploitation activities and the rights of indigenous communities. Rather than excluding state-owned natural resources from the application of the Convention, Article 15, paragraph 2, of the Convention, while recognizing this right, contains special provisions to address this situation. In this regard, the Committee notes with interest that Ministerial Resolution No. 596-2002 EM/DM, of December 2002, establishes the processes for the participation of citizens in the approval of environmental impact studies (EIA), including prior consultation. With regard to the hydrocarbons sector, the Committee notes with interest certain information relating to the Camisea Project and in particular to the Camisea Fund, financed through dues levied by the Government from companies, the aim of which is to support the development of indigenous peoples and populations affected by the project. The Committee also notes the proposed guide on the compensation of Indian communities for activities related to hydrocarbons. The Committee would be grateful if the Government would provide detailed information on the Camisea Project, indicating to what extent the consultation envisaged in Article 15, paragraph 2, is applied in the case of the exploration and exploitation of hydrocarbons and other natural resources, the progress achieved and the difficulties encountered.

9. The Committee notes that, according to the report, from January 1999 to November 2002, the General Directorate for Hydrocarbons, the General Directorate for Environmental Affairs, the Technical Secretariat for Indigenous Affairs, the National Mining, Oil and Energy Company, indigenous organizations and other sectors worked on the draft text of regulations on the participation and consultation of indigenous communities, but that this process could not be completed due to the withdrawal of the Inter-ethnic Association for the Development of the Peruvian Forest (AIDESEP) in November 2002. The Committee considers that the preparation of a general framework for the consultation and participation of indigenous peoples with regard to hydrocarbons could contribute to ensuring that hydrocarbon exploration and exploitation benefit all the parties involved by strengthening dialogue, inclusive and sustainable development, and legal security, thereby contributing to the prevention of possible future disputes. In this regard, the Committee invites the Government to continue its efforts to prepare the above regulations in consultation with indigenous peoples, reminds the Government that if it deems necessary, it may request the technical assistance of the Office and requests it to provide information in this regard.

10. Article 20. Recruitment and conditions of employment. The Committee notes from the report that an analysis of labour issues affecting indigenous populations could be carried out through the examination of the situation of the rural population, which would include the indigenous population. It notes that, on 22 July 2004, the Framework Act for the economic development of rural areas was adopted, with a view to overcoming the problems of poverty in rural areas. Its specific objectives include the improvement of the quality of rural life and respect for cultural diversity. In the context of this Act, the Rural Sector Support System (SAS RURAL) was established to guide and channel management and technology. Its executive board includes among its members a representative of rural and indigenous communities. The Committee would be grateful if the Government would keep it informed of the impact of this Act and of the SAS RURAL in terms of improving the living and working conditions of indigenous populations and if it would provide updated statistical information.

11. Labour inspection. Furthermore, the Committee requests detailed information on the health and safety services of the labour inspectorate, particularly with a view to their effective participation in inspections in rural areas where a large number of indigenous people work. The Committee also requests the Government to provide statistics on the number of inspections (especially those related to work by indigenous people) in rural areas.

12. Articles 21 and 22. Vocational training. The Committee requests the Government to provide detailed information on whether indigenous peoples enjoy equal access and participate in vocational training programmes for the general population and on any specific measures taken for the benefit of these peoples. Furthermore, it requests the Government to indicate whether there are vocational training programmes which are run and designed jointly with the indigenous peoples concerned so that their specific training needs are taken into account.

13. Articles 24 and 25. Health. The Committee notes that, according to the Government’s report, the living and health conditions of indigenous peoples are much lower than the national average and have reached alarming levels. The General Epidemiological Office (OGE) is the body responsible for assessing the health situation in the country and in each region. In order to produce an appropriate overview of the situation of the Amazonian indigenous peoples, the OGE signed an inter-institutional collaboration agreement with the AIDESEP to develop consultative processes with these peoples based on inter-cultural methodologies to provide reliable information from the perspective of indigenous peoples. Ministerial Resolution No. 192-2004/MINSA of 13 February established the National Committee for the Health of Amazonian Indians in order to draw up a comprehensive health plan. The Ministry of Health established national health strategies, one of which is the "Health of Indigenous Peoples", under the responsibility of the National Centre for Inter-cultural Health of the National Health Institute. This strategy will cover all the projects being undertaken in the Amazonian region. The Committee requests the Government to continue providing information on the "Health of Indigenous Peoples" strategy, its implementation and the results obtained, including updated statistical information.

14. Articles 26 to 31. Education and means of communication. The Committee notes the full information provided by the Government and the adoption of the General Education Act, No. 28044, establishing indigenous education and inter-cultural bilingual education; Act No. 27818 on inter-cultural bilingual education and Act No. 28106 on the preservation and promotion of aboriginal languages. It also notes the establishment of the National Directorate for Inter-cultural Bilingual Education and the National Advisory Council for Inter-cultural Bilingual Education, in which representatives of indigenous peoples participate. The Ministry of Education has concluded agreements with AIDESEP and the Aguaruna Huambisa Council and has begun the implementation of the Programme for Education in Rural Areas (PEAR), one component of which concerns community participation in plans for Andean and Amazonian indigenous peoples. The national policy in this field establishes that teaching staff shall teach indigenous students to read and write in their own language and in Spanish as a second language. The Committee also notes the specific activities of the media to promote plurality and the organization of meetings between indigenous children and children from the urban areas of Lima. The Committee requests the Government to continue providing information on the application of these Articles, their results and updated statistical information.

15. Article 32. Contacts and cooperation across borders. The Committee requests the Government to provide information on the measures adopted to facilitate contacts and cooperation between indigenous and tribal peoples across borders, including activities in the economic, social, cultural, spiritual and environmental fields, particularly in the Amazon region.

16. Part VIII of the report form. The Committee wishes to remind the Government that this part of the report form of the Convention, approved by the Governing Body, indicates that, although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application. The Committee would be grateful if the Government would indicate whether such consultations have been held or if it plans holding them in the future.