Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes with interest the Government’s report received in September 2012 providing, in response to the 2011 observation, detailed information on progress made in implementing the Act on the right to prior consultation, promulgated in September 2011; and on the process of drafting the regulations to the Act which came into force on 4 April 2012. The detailed information sent by the Government in a report received in September 2011 will also be examined below.

Communication from the International Organisation of Employers (IOE). The Committee notes that the IOE has submitted observations in August 2012 on the application in law and practice of Articles 6, 7, 15 and 16 of the Convention concerning the requirement of consultation. In this regard, the IOE raises the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus of indigenous and tribal peoples, and the importance for the Committee to be aware of the consequences of the issue in relation to legal security, financial costs and certainty of both public and private investment. The IOE refers to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also states that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to include in its next report any comments that it deems appropriate on the observations made by the IOE.

Part VIII of the report form. Communications from indigenous peoples. The Committee notes the communication from the General Confederation of Workers of Peru (CGTP) enclosing the 2012 Alternative Report prepared by five national and regional indigenous organizations and the Indigenous Peoples Working Group of the National Coordinator for Human Rights. The Alternative Report 2012, disseminated over the Internet, was likewise sent by the ILO to the Government of Peru in August 2012. The Committee invites the Government, in preparing its next report, to continue to consult with the social partners and indigenous organizations on the measures taken to give effect to the Convention. It hopes that in 2013 the Government will submit a report containing specific information on the matters raised in this observation and on the results achieved by the measures taken to give effect to each provision of the Convention.

Article 1 of the Convention. Peoples covered by the Convention. In its previous comments, the Committee pointed out that all indigenous communities must be covered by the Convention, regardless of their designation. The Committee notes the criteria for the identification of indigenous or original peoples laid down in the Regulation which provides that the criteria established in section 7 of the Act on the right to prior consultation “should be interpreted within the framework of Article 1 of the Convention” (section 3(k) of the Regulation). Furthermore, Ministerial Resolution No. 202-2012-MC of 22 May 2012 approved a directive regulating the operation of the official database of indigenous or original peoples. The database is a declarative register and reference tool, not a constitutive register of rights. The Committee invites the Government to indicate in its next report which indigenous peoples have been entered in the official database and to explain how the latter has been updated and evaluated.

Articles 2 and 33. Coordinated and systematic action. In reply to earlier comments, the Government referred in its report of September 2011 to plans devised by the National Strategic Planning Centre (CEPLAN), including the Comprehensive Development Plan for the Apurímac, Ayacucho and Huancavelica Indian Peoples 2010–21 (DIPA), the Madre de Dios regional government’s activities (2007–21) and the participation of indigenous peoples in the Ucayali regional government’s development plans. The National Strategy entitled “CRECER” in districts with indigenous peoples is aimed at a reduction of several percentage points in malnutrition among children by 2011. The Committee recalls that the duties of the National Institute for the Development of Andean, Amazonian and Afroperuvian Peoples (INDEPA) were taken over by the Ministry of Culture. The Vice-Ministry for Inter-Cultural Affairs is the Executive’s specialized technical body for indigenous matters (section 19 of the Act on the right to prior consultation and section 28 of the Regulation). The alternative reports sent by the CGTP stress the need for institutional reforms with an inter-cultural focus. The Committee invites the Government to specify the authorities that have responsibility at national and regional level for the matters covered by the Convention and to indicate the steps taken to ensure that these authorities have the means to perform their duties properly. The Committee requests the Government to indicate how the participation of the peoples concerned in the development of the programmes and plans mentioned in its reports has been ensured (Article 2(1)). The Committee points out that the planning, coordination, execution and evaluation of measures must be undertaken in cooperation with the peoples concerned (Article 33(2)) and hopes that the report will include an evaluation of the said programmes and plans as required by the Convention.

Article 3. Human rights and fundamental freedoms. Investigation of events in Bagua Province (Department of Amazonas). In its previous comments, echoing the Conference Committee at its 2009 and 2010 sessions, the Committee of Experts asked the Government to report on the results of the court proceedings pertaining to events that occurred in Bagua Province on 5 June 2009. In the report received in September 2011, the Government summed up the various recommendations made by the public bodies and other entities that investigated the events, including the conclusions drawn by the Congress of the Republic in June 2010. The Congress of the Republic requested the Public Prosecutor to identify the individuals and authorities involved, and also to find those politically responsible. The Government added in its report detailed information on the status of the different court proceedings. The alternative reports sent by the CGTP assert that the events in Bagua are evidence of the need for an inter-cultural dialogue to be conducted in good faith and that social protest must not be turned into a criminal offence. The Committee requests the Government in its next report to include new and up-to-date information on any trials still under way relating to the events in Bagua. The Committee invites the Government to indicate the measures taken to ensure that no force or coercion shall be used in violation of the human rights and fundamental freedoms of indigenous peoples and to avoid criminalizing events held by indigenous peoples.

Article 6. Consultation. The Committee again welcomes the adoption of the Act on the right to prior consultation and its Regulation, which contain many references to the provisions of the Convention. Numerous references to the Convention and to ILO technical assistance and documentation are also to be found in the Methodology Guide published by the Vice-Ministry for Inter-Cultural Affairs to provide guidance and assist with the management of public sector activities involving indigenous peoples. The Act and its Regulation set forth the stages of the consultation procedure, facilitate the identification of indigenous peoples and define the measures that are subject to consultation. They stress the importance of conducting consultations in good faith as part of a genuine inter cultural dialogue and the need to pay special attention to the situation of women, children, persons with disabilities and the elderly (section 5(a) and (g) of the Regulation). The right of petition of indigenous organizations has been included in section 9 of the Regulation. The Government indicates that some indigenous organizations refrained from participating in the consultations on the Regulation. The alternative reports sent by the CGTP allude to objections to the consultation process and the content of the Act and its Regulation. The Committee notes that taxation and budgetary rules will not be subject to consultation (section 5(k) of the Regulation). Also exempt from consultation are any exceptional or temporary state decisions taken to address emergency situations arising from natural or technological disasters (section 5(l) of the Regulation) and administrative measures deemed to be supplementary (12th supplementary, transitional and final provision of the Regulation). Furthermore, the current legislation does not envisage further legal provisions on the machinery for participation and for participation in benefits (fifth and tenth supplementary, transitional and final provisions of the Regulation) required by the Convention. The Committee understands that the Act on the right to prior consultation and its Regulation, the operation of the official database on indigenous peoples, the dissemination of a methodology guide and the call for indigenous interpreters to receive training in translation, interpretation and prior consultation, are evidence of progress made in establishing, as the Committee encouraged governments to do in its general observation published in 2010, “effective consultation mechanisms that take into account the visions of governments and indigenous and tribal peoples concerning the procedures to be followed”. The Committee hopes that the next report will contain information allowing it to ascertain how the new measures adopted under the Act on the right to prior consultation and its Regulation have been implemented. Bearing in mind that full effect has not as yet been given to the provisions on participation and cooperation by indigenous peoples set out in Article 6(1)(b) and (c), Article 7 and Part II (Land) of the Convention, the Committee encourages the Government to ensure, in consultation with the indigenous peoples and other interested parties, that appropriate legislative measures are adopted and that the provisions of the current legislation are revised accordingly.

Article 12. Legal proceedings. In reply to earlier comments, the Government states in the report received in September 2011 that the right to consultation has been enforceable since 2 February 1995, when Convention No. 169 entered into force. The Government also reports on the capacity-building activities for judiciary staff in the area of indigenous rights. In the report received in September 2012, the Government gives an account of the efforts made to reinforce local courts (justicia de paz) and inter-cultural justice. The Committee invites the Government in its next report to provide information on any court decisions settling matters of principle relating to the rights protected by the Convention. Please include examples of decisions by local courts relating to the Convention (Part IV of the report form), and related follow-up.

Article 14. Land. In the report received in September 2011, the Government states that the regional governments are responsible for the adoption of measures needed to guarantee the ownership rights of indigenous communities and to move the titling process forward. The Committee notes that 6,067 rural communities were recognized, 5,095 of which have been granted land titles, with titling still pending for 972 native communities. Of the 1,447 native communities registered or recognized, a total of 1,265 had received titles by January 2010, while titling is still pending for some 182 such communities. The Government confirms that the first supplementary provision of Supreme Decree No. 020-2008-AG establishes that the lands owned by peasant or native communities are not deemed unclaimed land suitable for agriculture, for the purposes of Legislative Decree No. 994 of 2009 on the promotion of private investment in irrigation projects to extend the agricultural frontier to lands owned by peasant or native communities. In earlier comments the Committee examined the situation of the Santo Domingo de Olmos (Lambayeque) community, where agreement had been reached to promote optimum use of water and new irrigation infrastructure. The Committee invites the Government to continue to report on the land registration and titling processes conducted by regional governments, specifying the surface areas titled and the beneficiary communities in each region of the country. Please also provide examples of the manner in which land claims submitted by indigenous peoples have been settled.

Regulation of the use of forestry resources and the mining and energy sector. Further to its previous comments, the Committee notes with interest that the Forestry and Forest Fauna Act (Act No. 29763, published on 22 July 2011) addresses recognition and respect for the rights of indigenous peoples and includes provisions on woods in native communities’ lands. In its report of September 2011 the Government states that, since the legislation has not been consolidated, a bill was submitted to the Congress of the Republic for the adoption of a single text grouping together all the rules governing activities in the electricity sector. The Committee invites the Government to send information in its next report on the use made in practice of the current legal provisions on the consultation and participation of indigenous peoples as regards the use of forestry resources. The Committee asks the Government to describe the manner in which the indigenous peoples have been consulted regarding the legislation governing activities in the electricity sector, indicating the provisions applying to activities in the mining and energy sector which give effect to Article 15 of the Convention.

Mining and hydroelectricity. The Committee notes the information sent by the Government in its September 2011 report concerning activities in the peasant community of San Lucas de Colán (Piura), the area of influence of the Sallca Pucará hydroelectric power station (Cuzco), the peasant community of San Antonio de Juprog (Ancash) and the territory of the Matsés people (Loreto). The Government states that by intervening in a timely manner, in some of these instances, it succeeded in containing the disputes. In one case it was noted that a company had undertaken commitments such as hiring and youth training or road building, which it failed to meet in full thus creating tension between the parties. The General Union of Wholesalers and Retailers of the Grau Tacna Commercial Centre (SIGECOMGT) once again expressed concern in April 2011 about the situation of certain Aymará peasant communities. Its observations were sent to the Government in August 2007, May 2008 and August 2011. SIGECOMGT transmitted the Views (communication No. 1457/2006) of the Human Rights Committee issued under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights and adopted at its 95th Session (March–April 2009), in which the committee observed that there were no prior consultations concerning the construction of wells (CCPR/C/95/D/1457/2006, 24 April 2009, paragraph 7.7). SIGECOMGT refers to new administrative measures adopted between August 2009 and February 2011 concerning gold mining, well drilling and the use of water resources. The 2012 Alternative Report sent by the CGTP refers to and documents important new cases: the Conga mining project, due to which a state of emergency was declared in four provinces in September 2011 and social tension persists in 2012; environmental pollution due to mining, affecting the population and the river Tintaya micro-basin, which prompted the peasant communities to file a complaint with the authorities of Espinar Province in November 201l. In Cordillera del Cóndor (Amazonas), in November 2011, 114 titles for mining rights were either registered or being processed covering an area of some 99,000 hectares that overlaps with an area occupied by native communities. The Committee requests the Government in its next report to include detailed information on the measures taken to ensure observance of the Convention, particularly Article 15, in the situations referred to in previous comments and in the cases submitted by the social partners and indigenous organizations. The Committee invites the Government to provide in its next report information on the effect of the measures taken to investigate the complaints filed with the competent authorities regarding environmental pollution in territories occupied by indigenous peoples. The Committee asks the Government, if environmental pollution is confirmed, to make every effort to protect the life and health of the members of the communities affected.

Participation in benefits. The Government states in the report received in September 2011 that Emergency Decree No. 079-2009 provides for local and regional governments to earmark 5 per cent of the funds received in petroleum royalties for public investment projects and social expenditure. Emergency Decree No. 026-2010 increased the regional governments’ requirement to 10 per cent, making more funds available and broadening investment to cover irrigation systems, micro-enterprises, the opening of pathways, bridges and retaining walls. The Government also refers to gas royalties and funds available from the Social and Economic Development Fund of the Camisea gas field (Cuzco). Some 300 participants benefited from a programme of training on hydrocarbons for indigenous leaders and four students from the Amazon region obtained university scholarships. The Committee refers to Article 15 which establishes the rights of indigenous peoples to the natural resources and the manner in which they should participate in the benefits from exploration or exploitation of the resources pertaining to their lands. The Committee refers to the other matters relating to the exploitation of natural resources raised in this observation and asks the Government to provide in its next report examples of the concrete effects the system of royalties and the other measures adopted by local and regional governments have had on the lives of indigenous peoples, such as their participation in the benefits, their development and the areas in which they live.

Education. Media. In the report received in September 2011, the Government states that more than 20,000 teachers in bilingual schools received training between 2006 and 2009. By mid-2011, nearly 193,000 teachers had received training through the National Programme for the Promotion of Bilingual Teaching in the Peruvian Amazon. According to information in the 2012 Alternative Report sent by the CGTP, as at August 2012, 20 per cent of indigenous children between 6 and 11 years of age had no access to a learning centre. The abovementioned report indicates that there is still a serious information deficit owing to a lack of accurate data on indigenous children of school age and inter-cultural and bilingual education institutions. The Committee stresses the importance of the provisions on the participation and involvement of the peoples concerned in the formulation and implementation of education programmes (Article 27). The Committee invites the Government in its next report to include information on the impact of the measures adopted in terms of eliminating prejudice against indigenous peoples and promoting inter-cultural and bilingual education, in particular, among indigenous girls and boys of compulsory school age (6–11 years old).