Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

The Committee takes note of the discussion that took place in the Conference Committee on the Application of Standards in June 2009 and the conclusions of the Conference Committee. It also notes the observations of 23 July 2009 by the General Confederation of Workers of Peru (CGTP), which were sent to the Government on 31 August 2009. The CGTP’s observations were prepared with input from the Inter-Ethnic Association for the Development of the Peruvian Rainforest (AIDESEP), the National Coordinating Committee for Communities Affected by Mining (CONACAMI), the National Agrarian Confederation (CNA), the Peasant Farmers’ Confederation of Peru (CCP), and non-governmental organizations belonging to the Indigenous Peoples Working Group of the National Coordinating Committee on Human Rights. The Committee further recalls that in its previous observation it did not address the whole of the Government’s report because of its late arrival. It will accordingly examine it as appropriate in this observation, together with the latest report.

The Committee notes that the Conference Committee indicated that the Committee has raised concerns in comments it has been making for years about persistent problems in applying the Convention in a number of areas, and went on to express grave concern at the incidents in Bagua and urge all parties to refrain from violence. It observed that the present situation in the country was linked to the adoption of legislative decrees relating to the exploitation of natural resources on lands traditionally occupied by indigenous peoples, and urged the Government immediately to establish a dialogue with indigenous peoples’ representative institutions in a climate of mutual trust and respect. It called on the Government to establish mechanisms for dialogue as required by the Convention in order to ensure systematic and effective consultation and participation. It further urged the Government to remove the ambiguities in the legislation as to the identification of the peoples covered by it, and to take the necessary steps to bring national law and practice into line with the Convention. In this connection, the Conference Committee asked the Government to elaborate a plan of action in consultation with the representative institutions of the indigenous peoples.

The Committee shares the grave concerns of the Conference Committee about the incidents in Bagua in June 2009 and considers that they are related to the adoption, without consultation or participation, of decrees affecting the rights of peoples covered by the Convention to their lands and natural resources. The Committee notes that both the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people and the United Nations Committee on the Elimination of Racial Discrimination have likewise expressed such concern at the situation of the indigenous peoples in Peru (see respectively, A/HRC/12/34/Add.8, 18 August 2009, and CERD/C/PER/CO/14-17, 31 August 2009). The Committee recalls that the Conference Committee called on the Government to make further efforts to guarantee indigenous peoples’ human rights and fundamental freedoms without discrimination in accordance with its obligations under the Convention. The Committee is of the view that a prompt and impartial inquiry into the events in Bagua is essential to ensuring a climate of mutual trust and respect between the parties, a prerequisite for establishing genuine dialogue in the search for agreed solutions, as the Convention requires. The Committee accordingly urges the Government to take the necessary steps to have the incidents of June 2009 in Bagua effectively and impartially investigated, and to provide specific information on the matter.

Article 1 of the Convention. Peoples covered by the Convention. The Committee notes that in its report the Government states, as it did during the discussion in the Conference Committee, that a draft Framework Act on Indigenous or Original Peoples of Peru has been prepared, which sets out a definition of indigenous or original peoples, with a view to removing ambiguities from the national legislation regarding identification of the peoples covered. The Committee notes that section 3 of the draft contains such a definition, whereas section 2 states that indigenous or original peoples of Peru include “the so-called peasant communities and native communities; as well as indigenous people in a situation of isolation and a situation of initial contact; it likewise applies to those who identify themselves as descendants of the ancestral cultures settled in Peru’s coastal, mountain and rainforest areas”. The Committee notes that, although the definition in section 3 of the draft reproduces the objective elements of the Convention’s definition, it makes no reference, unlike section 2, to the fundamental criterion of self-identification. The Committee also notes that the objective elements of the definition in the abovementioned draft include the criterion that these peoples “are in possession of an area of land”, which does not appear in the Convention. The Committee would point out in this connection that Article 13 of the Convention stresses the special importance for these peoples of the cultures and spiritual values of “their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use”. The Committee also draws the Government’s attention to the fact that Article 14(1) of the Convention, and in particular the expression “the lands which they traditionally occupy”, has to be read in conjunction with Article 14(3) on land claims, in that the Convention likewise covers situations in which indigenous and tribal peoples have recently lost occupation of their lands or have been recently expelled from them. The Committee accordingly urges the Government, in consultation with the indigenous peoples, to align the definition in the draft Framework Law on Indigenous or Original Peoples of Peru with the Convention. Please also supply information on the manner in which effective consultation and participation is ensured with indigenous peoples in the preparation of the abovementioned draft. Furthermore, the Committee again asks the Government to provide information on the measures taken to ensure that all those covered by Article 1 of the Convention are likewise covered by all provisions of the new legislation and enjoy the rights set forth therein on an equal footing.

Article 2 and 6. Coordinated and systematic action and consultation. Plan of action. With regard to the Conference Committee’s request for a plan of action to be drawn up in consultation with the representative institutions of indigenous peoples, the Committee notes the Government’s statement that proposed guidelines have been submitted for the development of a plan of action aimed at responding to the main observations put forward by the ILO’s supervisory bodies. Although the report affirms that the plan of action must be formulated in collaboration with the representatives of indigenous peoples, the Committee notes that there is no information on the manner in which participation of the indigenous peoples in this process is to be established, and that a “meeting with the representatives of the indigenous organizations” is envisaged with regard to the implementation phase of the abovementioned plan.

The Committee also notes that several bodies have been set up whose purpose, according to the Government’s report, is to establish dialogue with the indigenous peoples of the Amazonian and Andean areas. The Committee notes that, in March 2009, a Bureau for Ongoing Dialogue between the State and the Indigenous Peoples of the Amazonian Area of Peru was established and that, according to section 2 of Supreme Decree No. 002-2009-MIMBES establishing the Bureau, it “may” (podrá) include representatives of indigenous peoples. It also notes the Multisectoral Committee to deal with indigenous problems in the Amazonian area (Supreme Decree No. 031-2009-PCM of 19 May 2009), and observes that the minutes of the opening and first ordinary session of the Committee make no mention of indigenous representatives. It further notes the Bureau for Comprehensive Development of Andean Peoples (RS 133-2009-PCM, of 24 June 2009), the Bureau for Dialogue on the Comprehensive Development of Andean Peoples in Extreme Poverty (RS 135-2009-PCM of 26 June 2009) and the National Coordinating Group for the Development of Amazonian Peoples, which is responsible for formulating a comprehensive sustainable development plan for these peoples (Supreme Resolution No. 117-2009-PCM of 26 June 2009). With regard to the latter body, the Committee notes that it set up four working group to work on the composition of the Commission of Inquiry into the Bagua incidents, the revision of the legislative decrees, mechanisms for consultation and a national development plan for the Amazon region. The Committee likewise notes the concern expressed by the People’s Ombudsperson about the status of the dialogue process established within the abovementioned Group.

The Committee has insufficient information to assess the level of participation ensured for indigenous peoples in the various bodies mentioned above. It nonetheless considers that the information supplied appears to indicate that, at least in some cases, the participation of indigenous peoples through their legitimate representatives and dialogue between the parties is not effective. The Committee also expresses concern that the proliferation of bodies with mandates that sometimes overlap may hamper the development of a coordinated and systematic response to the problems of protecting and ensuring the rights of indigenous peoples established in the Convention. The Committee urges the Government to ensure full and effective participation and consultation of the indigenous peoples through their representative institutions in the preparation of the abovementioned plan of action, in accordance with Articles 2 and 6 of the Convention, so as to address in a coordinated and systematic manner outstanding problems concerning the protection of the rights of the peoples covered by the Convention, and to align law and practice with the Convention. It also asks the Government to provide information on this matter and on the work of the various bodies mentioned above, indicating how the participation of the peoples concerned and the coordination of the activities of these bodies are ensured, as well as coordination between the work of these bodies and the preparation of the plan of action. Please provide a copy of the plan of action as soon as it is finalized.

Articles 2 and 33. INDEPA. The Committee refers to its previous observation, in which it noted the CGTP’s assertion that the National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) lacked real authority. The Committee notes from the CGTP’s 2009 communication that although the administrative autonomy of INDEPA has been restored, indigenous participation in its Governing Council has not been re-established and no concerted policies have been developed on any issues affecting the indigenous peoples. The CGTP further asserts that there is no forum for cooperation on such policies. The Committee notes the Government’s statement that Ministerial Resolution No. 277-2009-MIMDES establishes a sectoral committee responsible for drafting new “regulations on the organization and functions of INDEPA”. The Committee notes that the sectoral committee is composed of the Vice-Minister for Social Development of the Ministry for Women and Social Development (MIMDES), the Executive President of INDEPA and the Director-General of the General Office of Planning and Budget of MIMDES, and that it has the authority to invite specialists and representatives from various institutions in the public and the private sectors. The Committee notes that the abovementioned Resolution contains no express reference to the participation of indigenous peoples. It further notes that the reform of INDEPA is likewise envisaged in the guiding framework for development of the abovementioned plan of action. The Committee reminds the Government that indigenous peoples must participate in designing mechanisms for dialogue and recalls the concerns raised previously about coordination between the various bodies and activities. The Committee urges the Government to ensure effective participation by the representative institutions of indigenous peoples in the design and implementation of mechanisms for dialogue and the other mechanisms needed for the coordinated and systematic administration of programmes affecting indigenous peoples, including the reform of INDEPA. It also asks the Government to ensure that such mechanisms have the necessary resources to perform their functions properly and have independence and real influence in the decision-making process. Please provide information on the measures taken in this regard.

Articles 6 and 17. Consultation and legislation. In its previous observation, noting that Legislative Decrees Nos 1015 and 1073 were adopted without consultation, the Committee expressed concern that communications are still being received alleging a lack of prior consultation on the measures provided for in Articles 6 and 17(2) of the Convention, and urged the Government to take steps without further delay, with the participation of the indigenous peoples, to devise appropriate mechanisms for participation and consultation. The Committee notes that in its communication of 2009 the CGTP states that no mechanisms have been established for prior consultation, so the indigenous peoples are unable to have a say in specific decisions that affect them. The Committee notes that Legislative Decrees Nos 1015 and 1073 setting conditions for disposing of communal land were repealed by Act No. 29261 of September 2008, and that Legislative Decrees Nos 1090 and 1064 approving, respectively, the Forests and Wild Fauna Act and the Legal Regime for the Exploitation of Lands for Agrarian Use were repealed by Act No. 29382 of June 2009. The Committee notes that, according to the Government, the working groups set up within the National Coordinating Group for the Development of Amazonian Peoples have responsibility for revising the legislative decrees and dealing with the issue of prior consultation. The Committee understands, however, that the issue of consultation is likewise addressed in the draft Framework Act on Indigenous or Original Peoples of Peru. It also takes note of a Bill on consultation, No. 3370/2008-DP of 6 July 2009, submitted to Congress by the People’s Ombudsperson. The Committee stresses the need for indigenous and tribal peoples to participate and be consulted before the adoption of legislative or administrative measures likely to affect them directly, including in the drafting of provisions on consultation processes, as well as the need for provisions on consultation to reflect among other things the elements set forth in Articles 6, 7, 15 and 17(2), of the Convention. The Committee also refers the Government to its previous comments on the need for a coordinated and systematic approach. It urges the Government to establish, with the participation of the peoples concerned, the mechanisms for participation and consultation required by the Convention. It also asks it to send information on the manner in which it ensures that the peoples concerned participate in and are consulted about the formulation of provisions governing consultation. It requests the Government to provide information on any progress made in this regard. The Committee reminds the Government that the Conference Committee welcomed the Government’s request for technical assistance and encourages it to pursue this course.

Articles 2, 6, 7, 15 and 33. In its previous observation, the Committee noted that the communications received referred to many serious situations of conflict connected with a dramatic increase in the exploitation of natural resources on lands traditionally occupied by indigenous peoples, without participation or consultation. The Committee notes that, in its communication of 2009, the CGTP refers to a statement by the People’s Ombudsperson to the effect that there has been an increase in social and environmental conflicts in the country and that they are concentrated in indigenous areas and are related to access and control of natural resources. The CGTP asserts that the Peruvian State persists with a “top-down” approach, imposing its projects in the Amazonian and Andean areas. It asserts that development policies lack sufficient guarantees to protect the environment for the indigenous peoples and that the Ministry of Environment lacks the authority to intervene in energy and mining policies. It refers to a ruling by the Constitutional Court (file No. 03343-2007-PA-TC), in proceedings brought by the regional government of San Martín against various petroleum enterprises and the Ministry of Energy and Mines regarding hydrocarbon projects being carried out in a regional conservation area. In its ruling, taking account of the provisions of the Convention, the Court reaffirmed the right of indigenous peoples to be consulted before the start-up of any project that might affect them, and also referred to article 2(19) of the Constitution which requires the State to protect ethnic and cultural plurality in the Nation (paragraph 28). The CGTP furthermore refers to a number of “emblematic instances” of exploration and exploitation of natural resources affecting indigenous peoples, such as the Cacataibo people, who live in voluntary isolation, the Awajun and Wampí peoples and the communities of Chumbivilcas province.

The Committee notes the Government’s statement that the Peruvian State construes consultation as “processes whereby points of view are exchanged” and has held a series of socialization workshops. It also notes that the Government refers to Decree No. 012-2008-MEM (regulations on citizens’ participation in hydrocarbon activities), according to which the purpose of consultation is “to reach better understanding of the scope of the project and its benefits”, which is much narrower than what the Convention provides.

The Committee wishes to point out that Article 6 of the Convention provides that the consultations shall be undertaken with the objective of achieving agreement or consent to the proposed measures. Although Article 6 of the Convention does not require consensus in the process of prior consultation, it does require, as the Committee underlined in its general observation of 2008 on the Convention, the form and content of consultation procedures and mechanisms to allow the full expression of the viewpoints of the peoples concerned, “so that they may be able to affect the outcome and a consensus could be achieved”. The Committee wishes to underscore that the Convention requires a genuine dialogue to be established between the parties concerned to facilitate the quest for agreed solutions, and emphasizes that, if these requirements are met, consultation can play a decisive role in the prevention and settlement of disputes. The Committee further points out that meetings solely for the purpose of information or socialization do not meet the requirements of the Convention.

The Committee considers that Supreme Decree No. 020-2008-EM regulating citizens’ participation in the mining subsector has similar limitations. Noting that the Decree envisages the possibility of citizens’ participation after a mining licence has been granted, the Committee is of the view that it does not meet the requirements of the Convention. The Committee urges the Government to take the necessary steps to bring national law and practice into line with Articles 2, 6, 7 and 15 of the Convention, taking into account the right of the peoples covered by the Convention to decide on their own priorities and participate in national and regional development plans and programmes. Recalling that the Conference Committee welcomed the Government’s request for technical assistance, the Committee encourages the Government to pursue that course. It also asks it to:

(i)    suspend the exploration and exploitation of natural resources which are affecting the peoples covered by the Convention until such time as the participation and consultation of the peoples concerned is ensured through their representative institutions in a climate of full respect and trust, in accordance with Articles 6, 7 and 15 of the Convention;

(ii)   provide further information on the measures taken, in cooperation with the indigenous peoples, to protect and preserve the environment of the territories they inhabit, in accordance with Article 7(4) of the Convention, including information on coordination between the Energy and Mining Investment Supervisory Body (OSINERGMIN) of the Ministry of Energy and Mines and the Environmental Evaluation and Control Agency (OEFA) of the Ministry of Environment; and

(iii) provide a copy of Supreme Decree No. 002-2009-MINAM of 26 January 2009, regulating the participation and consultation of citizens in environmental matters.

With regard to the benefits of extraction activities, the Committee notes the information supplied by the Government concerning a system of mining royalties and a mining tax. It also notes that in its communication of 2009, the CGTP indicates that this system allows the benefits to be distributed within the state apparatus with no benefits going directly to the communities affected. The Committee requests the Government to provide information on the specific measures taken to ensure that the peoples concerned participate in the benefits accruing from the exploitation of natural resources in their lands and receive fair compensation for any damage they may sustain as a result of such activities.

Article 14. Legislative Decree No. 994. The Committee notes the observations made by the CGTP in its communication of 2009 concerning Legislative Decree No. 994 “which promotes private investment in irrigation projects to broaden the agricultural horizon”. The Committee notes in particular that the abovementioned Decree lays down a special regime for promoting private investment in irrigation projects on unused land (tierras eriazas) with agricultural potential belonging to the State. The Committee notes that section 3 of the Decree establishes as state property all tierras eriazas with agricultural potential other than such lands for which a title for private or communal ownership is entered in the public records. The Committee notes with concern that this provision does not establish the rights of indigenous peoples over traditional lands where there is no official title of ownership. The Committee recalls that, in accordance with the Convention, traditional occupation confers a right to the land regardless of whether or not such right has been recognized and that, consequently, Article 14 of the Convention protects not only the lands over which the peoples concerned already have title of ownership but also the lands they traditionally occupy. The Committee urges the Government to take the necessary steps to determine the lands that the peoples concerned traditionally occupy and to guarantee effective protection of their rights of ownership and possession, including through effective access to appropriate procedures for settling their land claims. Please provide information on the measures adopted to this end.

Article 31. Educational measures. In its previous comments, the Committee expressed its concern at a number of statements which could give rise to prejudice or misconceptions regarding indigenous peoples. In this regard, the Committee expresses concern at the CGTP’s statement in its communication of 2009 that a discriminatory and aggressive attitude towards indigenous peoples on the part of the public authority continues to be noted. The Committee urges the Government to take educational measures as a matter of urgency in all sectors of the national community so as to eliminate any prejudice there may be about the peoples covered by the Convention, in accordance with Article 31.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2010.]