Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Convention (n° 169) relative aux peuples indigènes et tribaux, 1989 - Pérou (Ratification: 1994)

The Committee notes the discussion which took place in the Conference Committee in June 2010 and its conclusions. The Committee also notes the comments dated 27 July 2010 from the General Confederation of Workers of Peru (CGTP) prepared with the cooperation of the Inter-Ethnic Association for the Development of the Peruvian Rainforest (AIDESEP), the National Confederation of Communities of Peru affected by Mining (CONACAMI), the National Agrarian Confederation (CNA), the Farmers’ Confederation of Peru (CCP), the Peace and Hope Association, the Amazonian Centre of Anthropology and Practical Application (CAAP), CARE Peru, Law, Environment and Natural Resources (DAR), the Institute of Public Welfare (IBC) and the Indigenous Information Service (SERVINDI), which refer to outstanding issues, particularly the failure to promulgate the Act concerning the right of indigenous and original peoples to prior consultation and the existence of a bill which allows the displacement of people in large-scale projects, and the existence of numerous decrees aimed at dividing up and reducing communal territories. The Committee also notes the comments from the Single Confederation of Workers of Peru (CUT) of 25 August 2010 concerning the lack of recognition of indigenous peoples in the country, disregard for the right of consultation of indigenous peoples, problems regarding the definition of lands traditionally occupied by indigenous peoples, and the lack of adequate institutions in the country to deal with the issues of indigenous peoples since the National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) is not fulfilling its mandate and there is no indigenous participation in its executive council. According to the CUT, as a result the Government has been obliged to set up round tables for dialogue to settle disputes with the Amazonian indigenous peoples. The Committee notes that the Government sent its observations on the comments from the CGTP in a communication dated 7 October 2010. The Committee points out that some of the issues raised by the trade union organizations are the subject of a representation under article 24 of the Constitution and will therefore be examined in that context.

Follow-up to the conclusions of the Conference Committee. The Conference Committee in 2009 raised a range of issues, including the incidents in Bagua, resulting in numerous deaths and injuries among indigenous peoples and the police. The Conference Committee in 2010 urged the Government to provide information on the promulgation and application of the Act concerning the right of indigenous or original peoples to prior consultation adopted on 19 May 2010 by the Congress and the related transitional measures in order to evaluate compliance with the provisions of the Convention. The Conference Committee also considered it necessary to reform INDEPA with the full participation of the representative organizations of the indigenous peoples in order to ensure its legitimacy and authentic capacity for action and to guarantee the application of the Act concerning consultation. The Conference Committee also requested information on the application of the development plan for the Amazonian region. It also considered that progress needed to be made in relation to the formulation and application of plans of action to deal systematically with pending issues relating to the protection of the rights of peoples covered by the Convention, and it emphasized the need to ensure that these plans of action are formulated and implemented with the participation of the representative organizations of the indigenous peoples, in accordance with Articles 2 and 6 of the Convention. Finally, the Conference Committee asked the Government to send information on the impact on the training of bilingual teachers of Ministerial Decision
No. 0017-2007-ED establishing admission criteria for candidates as teachers. It encouraged the Government to avail itself of ILO technical assistance to ensure that adequate progress is made in the application of the Convention.

Investigation of incidents in Bagua. In its previous comments, the Committee urged the Government to take the necessary steps without delay to conduct an effective and impartial investigation into the incidents of June 2009 in Bagua, in which 23 police officers and ten civilians died, and provide detailed information in this regard. The Committee notes the Government’s statement that, in the context of the National Coordinating Group for the Development of the Amazonian Peoples (Dialogue Group), Round Table No. 1 was established composed of three representatives of the Executive Authority, three representatives of the indigenous peoples and one representative of the regional governments. The round table drew up one report by the majority and one report by the minority of its members, and these, according to the Government, were approved by the Presidency of the Council of Ministers and referred to the corresponding departments of the Executive Authority, Office of the Public Prosecutor and Judicial Authority. The Committee also notes that the Congress set up the “Multi-Party Commission of Inquiry into the events in the city of Bagua and surrounding area”, which also drew up reports which were submitted to the plenary of Congress, and that the Office of the Provincial Prosecutor of Utcubamba instituted various judicial proceedings for the criminal offences of murder, violence, resistance towards the authorities and the carrying of firearms. The Committee notes the indication of the CGTP that the majority report drawn up by Round Table No. 1 does not shed light on the events that took place or assign responsibilities for what happened and was not accepted by the indigenous peoples. The CGTP also emphasizes that the report of Congress concluded that the events were caused by violations of the fundamental rights of the indigenous peoples. The Committee requests the Government to provide information on the measures taken as a consequence of the various reports drawn up in the context of Round Table No. 1 of the National Coordinating Group for the Development of the Amazonian Peoples, the conclusions reached by the plenary of the Congress in relation to the reports drawn up by the Multi-Party Commission of Inquiry, and also on the outcome of the judicial proceedings in progress regarding the events that took place in Bagua.

Article 6. Consultation. The Committee recalls that the Conference Committee welcomed the adoption by the Congress of the Republic of the Act concerning prior consultation and indicated that it trusted that the Act would be promulgated in the very near future by the President of the Republic. The Committee also recalls that the Act had been the result of negotiations between the Executive Authority and the Amazonian organizations in the context of Round Table No. 3, whose objective was to reach a consensus on legislation concerning consultations. In this respect, the Committee notes with regret the statement from the Government to the effect that since the adoption by Parliament of the Act concerning the right of indigenous or original peoples to prior consultation, the Act was not promulgated by the Executive Authority, which made certain observations relating to it (Official Letter No. 142-2010-DP/SCM). The Government adds that the Act was referred back to Parliament for revision, that the Commission for the Constitution and Regulations and the Commission for Andean, Amazonian and Afro-Peruvian Peoples, Ecology and the Environment have already issued opinions in this respect, which will be examined by the plenary of Congress in the near future. The Committee notes that, in its observations on the Act approved by Congress, the Executive Authority: (1) remarked that it should be made clear in the Act that indigenous peoples do not have any right of veto in the consultation process concerning projects for the exploration and exploitation of natural resources which have been duly notified and analysed together with the indigenous peoples in the areas covered by the said projects (observation No. 1); (2) considered that the possibility established in section 9 of the Act that indigenous peoples may challenge the decisions of the Executive Authority with respect to the participation of certain indigenous peoples vis-à-vis the Judicial Authority was “reiterative inasmuch as any person or institution may now file appeals to assert guarantees, applications for decisions to be set aside or for compensation with the Judicial Authority” (observation No. 5); (3) considered that “the Act must clearly state the difference between territories under public ownership in Amazonia and areas assigned to the ownership of native communities […] . It is in the context of the latter that the right to consultation must be exercised” (observation No. 6).

In this context the Committee refers to its general observation of this year, on the “obligation to consult” under the Convention which is intended to mean that: (1) consultations must be formal, full and exercised in good faith; there must be a genuine dialogue between governments and indigenous and tribal peoples characterized by communication and understanding, mutual respect, good faith and the sincere wish to reach a common accord; (2) appropriate procedural mechanisms have to be put in place at the national level and it has to be in a form appropriate to the circumstances; (3) consultations have to be undertaken through indigenous and tribal peoples’ representative institutions as regards legislative and administrative measures; (4) consultations have to be undertaken with the objective of reaching agreement or consent to the proposed measures. The Committee therefore emphasizes that the right of indigenous peoples to consultation cannot be limited exclusively to measures affecting indigenous lands in respect of which ownership title has already been granted, as observation No. 6 of the Executive Authority appears to suggest, but must also encompass administrative or legislative measures which may affect them directly, including those concerning indigenous lands or territories traditionally occupied or used regardless of whether or not ownership title has been granted with respect to them. They must also be able, pursuant to Article 12 of the Convention, to take legal proceedings, either individually or collectively, for the effective protection of their rights, including their right to consultation. The Committee expresses the firm hope that the Act on the right of indigenous or original peoples to prior consultation will be approved in the near future by Congress, that the Act will be the result of an ongoing process of consultation with the representative institutions of the indigenous peoples, including regarding the observations of the Executive Authority and that the Act will be in full conformity with the provisions of the Convention. In addition, the Committee requests the Government to ensure full observance of the right of indigenous and tribal peoples to participate and be consulted prior to the adoption of legislative or administrative measures which may affect them directly. The Committee also requests the Government to guarantee that there are specific provisions in the Act so that indigenous peoples can take legal proceedings, either individually or through their representative bodies, in the event that they consider that their right to be consulted on measures affecting them directly has not been observed. The Committee requests the Government to provide information on any progress made in this respect.

The Committee also notes the explanatory decision of the Constitutional Court dated  24 August 2010 (in relation to file No. 06316-2008-PA/TC), which provides that it is necessary to establish that the mandatory nature of the right to consultation shall be considered binding as from the publication of Constitutional Court Ruling No. 022-2009-PI/TC, in light of the considerations set out therein. The Committee emphasizes that Ruling No. 022-2009-PI/TC is dated 9 June 2010, and therefore that the right to consultation was not considered binding before that date. In this respect, the Committee recalls that, in conformity with Article 38 of the Convention, the Convention shall come into force for any Member of the ILO 12 months after the date on which its ratification has been registered. Taking account of the fact that Peru ratified the Convention on 2 February 1994, the Committee reminds the Government that all the provisions of the Convention, including those relating to the obligation of consultation, have been binding on it since 2 February 1995. Pursuant to Article 38 of the Convention and in the light of Article 12 of the Convention concerning the legal protection of the rights recognized in the Convention, the Committee requests the Government to indicate how it ensures that indigenous peoples have been able to enjoy effective judicial protection of the right to consultation from the date of entry into force of the Convention.

Articles 2 and 33. Coordinated and systematic plan of action. In its previous comments, the Committee urged the Government to ensure full and effective participation and consultation of the indigenous peoples through their representative institutions in preparation of the plan of action drawn up to address, in a coordinated and systematic manner, outstanding problems relating to the protection of the rights of the peoples covered by the provisions of the Convention and to align national law and practice with the Convention. The Committee also asked the Government to supply information on this matter and on the work of the various bodies concerned, 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. The Committee notes the indication from the CGTP that there is still no agreed plan of action or any dialogue or consultation on its implementation and that the various state bodies are continuing their sectoral policies without any real participation from the indigenous peoples. In this respect, the Committee notes the Government’s indication that, in the context of the National Coordinating Group for the Development of the Amazonian Peoples, Round Table No. 4 (National Development Plan for Amazonia) was established, in which 82 working meetings were held and a National Development Plan for the Amazonian Peoples was drawn up, based on consensus between representatives of the national Government, regional governments and the two most representative indigenous organizations (the Inter-Ethnic Association for the Development of the Peruvian Rainforest (AIDESEP) and the Confederation of Indigenous Nationalities of Peru (CONAP)). This Plan provides for measures (some of which were requested by the Committee) in the following areas: right of ownership and legal certainty, bilingual inter-cultural education, inter-cultural health system, participation of indigenous peoples in the use of natural resources, development policies and production projects. The Committee reiterates its 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 and recalls that Articles 2 and 33 of the Convention provide for coordinated and systematic action with the participation of the indigenous peoples from the planning through to the evaluation of the measures provided for in the Convention. The Committee requests the Government to:

(i)    state whether the National Development Plan for the Amazonian Peoples is being implemented and the results achieved;

(ii)   clarify whether any other plan has been drawn up in consultation with the indigenous peoples at national or regional level intended for indigenous peoples in general or specifically covering the Andean communities;

(iii)  send additional information on the functions performed by the various entities mentioned by the Government and whether they are still active and on the manner in which coordination is ensured between them.

National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA). The Committee emphasizes that the Conference Committee noted the Government’s indication that the Act concerning the right of indigenous and originals peoples prior consultation assigns a central role to INDEPA and considered that INDEPA needed to be reformed with the full participation of the representative organizations of the indigenous peoples in order to ensure its legitimacy and its genuine capacity for action. The Committee notes that the CGTP indicates once again that there have been no consultations with indigenous peoples regarding the institutional reform of INDEPA. The Committee notes the Government’s indication that, in compliance with the conclusions of the round tables established in the context of the National Coordinating Group, in which the representatives of the organizations of the indigenous peoples participated, INDEPA was transferred to the Presidency of the Council of Ministers and was declared a specialized technical public entity (Supreme Decree No. 022-2010-PCM and Supreme Decree No. 048-2010-PCM). The Government also indicates that the establishment is envisaged of an executive council composed of representatives of the Andean, Amazonian and Afro-Peruvian peoples. The Government indicates that INDEPA has four national coordination centres, with indigenous representatives, which have been set up recently. This enables coordination between the Andean, Amazonian and Afro-Peruvian peoples and the regional and local governments, and makes it possible to prevent disputes, promote participation and create an ongoing participation machinery. The Committee observes that the Council of Ministers is currently revising the regulations governing the operating structures of INDEPA and that, since the adoption of Act No. 29565 of 22 July 2010, is now no longer attached to the Presidency of the Council of Ministers but to the Under-Ministry of Inter-Cultural Affairs, which is under the responsibility of the Ministry of Culture. The Committee observes that for years the INDEPA has been affected by considerable institutional instability, that it has changed hierarchical structure on various occasions, and that it has been under the responsibility of different ministries and authorities at different times. The Committee requests the Government to take the necessary steps to ensure the effective participation of the representative institutions of the indigenous peoples in the institutional reform of INDEPA, in the constitution of its executive council and in the revision of the regulations governing its functions, in order to ensure its legitimacy and its genuine capacity for action. The Committee requests the Government to provide information on this matter and also on the impact of the recent establishment of the four INDEPA centres on the dialogue between the regional and local governments and the indigenous peoples concerned, on the participation of the latter in INDEPA’s activities and on the prevention of disputes.

Follow-up to the Committee’s comments. Article 1. Peoples covered by the Convention. The Committee recalls that in its previous comments it noted a framework Bill concerning the indigenous or original peoples of Peru, which lays down 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 asked the Government to align, in consultation with the indigenous peoples, the definition in the framework Bill with the Convention. The Committee also asked the Government to supply information on the manner in which effective consultation and participation was ensured with indigenous peoples in the preparation of the Bill and also on the measures taken to ensure that all the peoples covered by Article 1 of the Convention are covered by all the provisions of the Convention and enjoy the rights set forth therein on an equal footing. The Committee notes the comments from the CUT that there is no political will to consult the indigenous peoples with a view to establishing unified criteria for their identification. The Committee also notes that the CGTP refers to the exclusion of the communities of the Andean and coastal zone from the protection of the Act concerning the right to prior consultation.

In this respect, the Committee notes the Government’s indication that a participatory consultation process was conducted in the context of the National Coordinating Group with representatives of the indigenous peoples with a view to aligning national legislation in relation to the definition of indigenous peoples (Round Table No. 3). The opinions presented were analysed in the Commission for Andean, Amazonian and Afro-Peruvian Peoples, Ecology and the Environment, which prepared a preliminary opinion on the Bill concerning the right to prior consultation. The Committee notes that sections 5–7 of the Bill refer to the persons covered by the Bill and that section 7 in particular refers to the criteria for identification, namely: direct descent from original peoples; lifestyles and spiritual and historic links with the territory that they occupy; own social institutions and customs; different cultural patterns and ways of life from those of other sections of the population. The Committee notes that the Government in its comments on the Bill concerning the right to prior consultation, set out in Official Letter No. 142‑2010-DP/SCM opposes the inclusion of the Andean and coastal–rural communities in the definition of indigenous peoples (observation No. 6). The Committee recalls that in previous comments it noted the Government’s indication that section 2 of Act No. 28945 concerning the National Institute of Andean, Amazonian and Afro-Peruvian Peoples refers to the Andean, Amazonian and Afro-Peruvian peoples and that rural communities and native communities are included in the recognition of their ethnic and cultural rights as communities similar to indigenous peoples, with emphasis on the social, political and cultural aspects, which coincides with the provisions of articles 89 and 149 of the Constitution of the Republic. The Committee recalls that it emphasized the need for indigenous communities to be covered by the Convention regardless of their designation. The Committee also notes that Article 1 of the Convention refers to “descent” and is concerned that the reference to “direct descent” in the draft Act may be too restrictive. Recalling the need to ensure that the criteria for identification of the indigenous peoples are unified, in consultation with the indigenous peoples themselves, the Committee requests the Government to ensure that the Bill on the right of indigenous and original peoples to prior consultation ensures that these peoples fully enjoy the protection established in the Convention, regardless of their designation, and to provide information on any developments in this respect. The Committee also requests the Government to indicate the progress made in Parliament in the adoption of the draft framework Bill concerning the indigenous or original peoples of Peru.

Article 7. Participation. In its previous observation, the Committee urged the Government to take the necessary steps to bring national law and practice into conformity with Articles 2, 6, 7 and 15 of the Convention, taking into account the right of peoples covered by the Convention to decide on their own priorities and participate in national and regional development plans and programmes. The Committee notes the statement by the CGTP that no standards or institutions have been established to enable implementation of the right of indigenous peoples to decide on their own priorities for development, nor have any forums for dialogue in this area been opened. The Committee notes the Government’s indication that the most significant measure is the dialogue conducted in the context of the National Coordinating Group, which had the full participation of the Amazonian communities. The Committee requests the Government to continue to supply information on the measures taken as a result of the dialogue conducted in the context of the National Coordinating Group for the Development of the Amazonian Peoples, and on their implementation and impact, and also on any other plan or programme adopted for the benefit of other indigenous communities or peoples. The Committee also requests the Government to indicate the measures adopted with a view to aligning national law and practice with the Convention in order to guarantee the right of indigenous peoples to decide on their own priorities and participate in national and regional development plans and programmes.

National development plans, programmes and projects. The Committee notes that the Executive Authority, in its observations on the Bill concerning the right to prior consultation (Official Letter No. 142-2010-DP/SCM), objects to the fact that section 2 provides that consultations should also be held with respect to national and regional development plans, programmes and projects which directly affect the collective rights of the indigenous peoples and maintains that the Convention does not establish the obligation of consultation with respect to national and regional development plans, programmes and projects, which would extend the scope of the Convention in an unnecessary and inappropriate way, and this could paralyse the execution of important infrastructure works for the country. Observing that Article 7 establishes that 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 indicate the manner in which the participation provided for in the Convention is ensured.

Impact studies and environmental protection. In its previous comments, the Committee asked the Government to provide information on the measures taken, in cooperation with the indigenous peoples, to protect and preserve the environment of the territories which 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 the Environment. The Government indicates that the Ministry of Energy and Mines takes care of the promotion of investments while the supervision of mining and energy projects comes under the responsibility of the Ministry of the Environment, for which reason this function was then transferred to the OEFA.

The Committee also notes the Government’s indication that: (1) the Regulations concerning public consultation and participation regarding activities related to oil, gas and electricity (Supreme Decree No. 012-2008-EM and Ministerial Decision No. 223-2010-MEM/DM) provide for public consultation and participation with regard to the preparation of environmental studies and also provide for citizen’s monitoring and supervision mechanisms subsequent to the approval of such studies in order to involve the indigenous peoples and the population in environmental protection; (2) the special regime for the administration of communal reserves approved by Administrative Decision No. 019-2005-INRENA-IANP provides for a mechanism of coordination with the indigenous peoples for the safeguarding of protected natural areas; (3) tripartite dialogue has been conducted in relation to oil and gas activities in the Peruvian rainforest aimed at protecting the environment of the Department of Madre de Dios; (4) the development of a national forest conservation programme has been approved, in the context of which 67 consultation sessions have been held with the Ashaninkas native communities in the central rainforest; and (5) the project on mitigation and adaptation to climate change for the protection of areas of the central rainforest has been approved, with funding provided for a programme of sustainable economic activities with the indigenous peoples of the area. The Committee also notes that Supreme Decree No. 002-2009-MINAM approves the Regulations on transparency, access to public information on the environment and public participation and consultation in environmental matters, which provide for a mechanism for the participation of citizens in the determination and application of policies relating to the environment, in the process of public decision-making on environmental matters, and on their execution and supervision, and that dialogue with civil society shall be sought in decisions and actions relating to environmental management (section 21). The consultation mechanisms may also assume various forms: participatory workshops, public hearings, opinion surveys, suggestion boxes, environmental, regional and local commissions, technical groups and management committees, and these must be held in Spanish and in the predominant language of the place concerned (section 29). The draft environmental study must also be drawn up in Spanish or in the language of the location concerned, be easy to understand and mention the types of impact which have been identified and the impact mitigation or compensation measures which have been established (section 34). The Committee welcomes this information in view of the fact that the Convention requires the establishment of genuine dialogue between the parties concerned to enable concerted solutions to be sought and, if these requirements are fulfilled, consultations may play a decisive role in the prevention and settlement of disputes. The Committee requests the Government to continue to supply information on all the measures taken, in cooperation with the indigenous peoples, to protect and preserve the environment of the territories which they inhabit. The Committee also requests the Government to provide information on the specific application in practice with regard to the indigenous peoples of Supreme Decree No. 002-2009-MINAM concerning citizen’s participation and consultation in environmental matters and of the sectoral legislation concerning citizen’s participation, and to indicate whether environmental impact studies also evaluate the social, spiritual and cultural impact of development activities on the indigenous peoples, as provided for in Article 7(3) of the Convention.

Article 14. The Committee recalls that, in its previous comments, it referred to Legislative Decree No. 994 of 2008 which establishes a special regime for promoting private investment in irrigation projects on unclaimed land (tierras eriazas) with agricultural potential belonging to the State, section 3 of which establishes as state property all unclaimed land with agricultural potential other than such lands for which a title for private or communal ownership is entered in the public records. It also noted that Decree No. 994 of 2008 does not protect the rights of indigenous peoples over traditional lands where there is no official title of ownership. The Committee asked the Government to provide information on the measures taken 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. The Committee notes that the CGTP and CUT refer to this matter, making reference to Legislative Decree No. 1089 respecting rural occupancy and ownership. The Committee further notes the Government’s indication that the various projects concerning the ownership and registration of lands implemented between 2002 and 2006 benefited 550 farming communities and 55 native communities in the Amazon rainforest, with ownership title having been granted to 84 per cent of all farming communities and 87.42 per cent of native communities by the end of 2009. The Government adds that between 1975 and 2009 a total of 1,447 native communities were recognized, of which 1,265 were granted ownership title to their lands, and that the procedures for demarcating and granting ownership in respect of territory are governed by the Act on native communities and agrarian development of the rainforest regions (Legislative Decree No. 22175) and its implementing regulations (Supreme Decree No. 003‑79-AA). In addition, Act No. 24657 on demarcating and granting ownership of the lands of farming communities provides for the formalization of the right of ownership of native communities with respect to the territories that they occupy. The Government also indicates that Legislative Decree No. 1089 and its regulations (Supreme Decree No. 032‑2008-VIVIENDA) establishes an extraordinary temporary regime to formalize and grant ownership title with respect to rural properties. It also explicitly provides that the mechanism is not applicable in areas located within the territory of farming and native communities. The Committee further notes that the Constitutional Court confirmed that Legislative Decree No. 1089 and its implementing regulations are not applicable to the territories of indigenous peoples, regardless of whether or not they have been officially recognized, as laid down by sections 3(1) and 15 of the regulations (case No. 0022-2009-PI/TC, ruling of 9 June 2010). The Committee requests the Government to take the necessary steps to guarantee the protection of the rights of indigenous peoples to the lands that they traditionally occupy. Noting that Legislative Decree No. 1089 is not applicable to the territories that indigenous peoples traditionally occupy, the Committee requests the Government to supply information on the manner in which the full application of Article 14 of the Convention is ensured, in particular the processes for granting ownership with respect to, and for registration of, lands which are in progress, the areas in respect of which ownership title has been granted, the communities which have benefited, and also to indicate the legislation applicable to these processes. The Committee asks the Government to ensure that section 12 of Legislative Decree No. 994 of 2008, which provides for the possibility of eviction from unclaimed lands in case of invasion or usurpation, does not apply to indigenous peoples who traditionally occupy lands even if they do not have any formal title of ownership.

Article 15. Consultations in relation to natural resources. The Committee notes the existence of preliminary draft regulations for the consultation of indigenous peoples with respect to energy and mining activities drawn up by the Ministry of Energy and Mines, pursuant to the ruling of the Constitutional Court of 30 June 2010 ordering the Ministry to issue, in areas within its competence, special regulations establishing the right of indigenous peoples to consultation, in conformity with the principles and rules established by the Convention (TC No. 05427-2009-PC/TC). The Committee also notes a Bill amending the legislative framework relating to the electricity sector and authorizing the drawing up of a single consolidated text of the regulations governing activities in the electricity sector was transmitted by the Executive Authority to Congress (No. 4335/2010-PE) and the draft Act on forestry which is pending before Congress, in respect of which the Office of the People’s Ombudsman requested consultations to be held. The Committee requests the Government to supply additional information on these Bills and draft regulations and on the progress of their adoption by Parliament, and to indicate the measures taken with a view to submitting them to a process of consultation with the representative organizations of the indigenous peoples.

With regard to the Committee’s previous comments concerning the exploration and exploitation of natural resources affecting the peoples covered by the Convention and the need to ensure the participation and consultation of the peoples affected through their representative institutions in a climate of full respect and trust, the Committee notes that the Government emphasizes the importance of mining for the development of the local economies and the improvement of the living conditions of the inhabitants of the districts in which mining is present. The Government also indicates that it promotes corporate social responsibility, and adds that no mining concessions are granted in the natural areas protected from indirect use and in declared indigenous reserves. The Government points out that mining concessions only grant the right of exploration or exploitation in a preferential manner and the start of activities is subject to environmental authorization and negotiation with the surface owner concerned. The Government adds that once the holder of the concession decides to undertake exploration or exploitation activities, the citizen’s consultation and participation procedure provided for in the regulations on citizen’s participation (Supreme Decree No. 028-2008-EM) must be launched. While noting this information, the Committee observes that the Government does not supply any information on the cases of exploration and exploitation of natural resources affecting indigenous peoples (the Cacataibo people, who live in voluntary isolation, the Awajun and Wampis peoples, and the communities of Chumbivilcas province), to which it referred in its previous comments and which were also cited by the CGTP. The Committee notes that the CGTP refers in its latest comments to the mining exploitation activities taking place in the caserio of San Antonio de Juprog (Quechua-speaking community), in the district of San Marcos in Huaria province, and which, according to various studies which have been conducted, are causing contamination and damaging the health of the inhabitants (contamination through lead, cadmium, zinc and arsenic). According to the CGTP’s comments, there are also plans to displace this community, but none of the measures adopted so far has been the subject of consultations with the indigenous peoples concerned. The CGTP also refers to the concessions granted for oil and gas exploitation in the territory of the Matses people without any prior consultation. The Committee underlines the importance of the duty of the State to undertake prior consultations on any measures that may directly affect the indigenous peoples. The Committee requests the Government to take the necessary steps to conduct consultations with the indigenous peoples referred to above concerning the exploration and exploitation of natural resources in the territories that they occupy or otherwise use (Article 13 of the Convention), before undertaking or authorizing any activity, and to determine whether the interests of those peoples have been harmed and to what extent, with a view to adopting the appropriate impact reduction and compensation measures. The Committee also requests the Government to take the necessary steps to have complaints investigated relating to the contamination of territories occupied by the indigenous peoples and, should the existence of such contamination be proven, to take all the necessary steps to protect the life and safety of the members of these communities.

Participation in benefits. As regards the measures taken to ensure that the peoples concerned participate in the benefits accruing from the exploitation of natural resources on their lands and that they receive fair compensation for any damage suffered as a result of these activities, the Committee notes the Government’s indication that Emergency Decree No. 028-2006 provides that regional and local governments must invest 5 per cent of funds assigned by way of levies to the funding of public investment and social expenditure projects in the communities located within the areas of exploitation. The Committee also notes that Emergency Decree No. 026-2010 increased the planned allocation of funds (10 per cent for regional governments and 5 per cent for local governments). The Committee notes that the Decree provides for the participation of representatives of farming and native communities in the control of decisions for the allocation of these funds. The Government also refers to private initiatives ensuring the participation of indigenous peoples in the benefits and compensation provided for in sectoral legislation. The Government indicates that in the 2007–09 period transfers to the regions under the mining levy amounted to PEN13,300 million (nuevos soles) and the transfers under the standard and extra levies relating to oil and gas amounted to PEN3.9 million. Recalling that Article 15 of the Convention states that the indigenous peoples shall wherever possible participate in the benefits of activities which exploit the resources existing on their lands, the Committee requests the Government to ensure that the planned levies enable such participation in practice and to provide information on the measures taken in this respect and on their real impact on the lives of the indigenous peoples, their development and the areas which they inhabit.

Articles 26 to 29. Education. With regard to the Conference Committee’s request to supply information on the impact on the training of bilingual teachers of Ministerial Decision No. 0017-2007-ED, which establishes the requirement of achieving a minimum mark of 14 out of 20 points to be able to take up training as a bilingual teacher, which might result in indigenous candidates being excluded from the education process, the Committee notes the information supplied by the Government on the legal provisions which regulate education and indicates that the Directorate of Higher Education for Teaching (DESP) governs institutes and schools of higher education for teacher training so that they can make provision for professional teaching careers in bilingual education. The Directorate approves plans for teacher training proposed by the institutions themselves so that they can meet the training needs of their own communities. It also regulates training and approval of proposed curriculum context for higher education geared to teacher training. Five institutes in the Andean region offer training for teachers in primary education. As regards the conditions for entry to teacher training courses, the Government states that, according to the statistics, there was an increase in participation and that students who did not achieve the minimum mark of 14 but scored between 11 and 13.99 points can enrol in the academic foundation course. The Committee requests the Government to continue to supply information on the measures taken and their impact on the numbers of indigenous bilingual teachers who have been trained.

Finally, noting the suggestion of the Conference Committee on the Application of Standards, the Committee of Experts reminds the Government that it may avail itself of technical assistance from the ILO.

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

[The Government is asked to reply in detail to the present comments in 2011.]