Participants: Coordinadora Nacional de Derechos Humanos (CNDDHH) of Peru, State of Peru, Instituto de Defensa Legal (IDL), Asociación Pro Derechos Humanos (APRODEH), Asociación Interétnica de Desarrollo de la Selva Peruana (AIDESP), Central Asháninka del Río Ene (CARE), Centro Amazónico de Antropología y Aplicación Práctica (CAAAP), Asociación Paz y Esperanza, Derecho Ambiente y Recursos Naturales (DAR), Instituto del Bien Común (IBC), Servicios en Comunicación Intercultural (SERVINDI)

Countries: Peru

Topics: Rights of Indigenous Peoples

Update: “Do what is just” was the simple plea brought by petitioner Henderson Rejifo of the Asociación Interétnica de Desarrollo de la Selva Peruana (AIDESEP). AIDESEP and the other petitioners represent indigenous communities in Peru who have allegedly been subject to aggression and violations of their rights to life, health, and self-determination as well as their ethnic and cultural rights, environmental rights, and the right to natural resources. These charges were heard by the Inter-American Commission on Human Rights at a hearing on October 26, 2010. The petitioners asserted that the Peruvian government, through action or omission, violated the rights of indigenous peoples by enacting policies on the growth of the energy industry in areas owned by indigenous communities that violate the fundamental rights of those communities. Additionally, the petitioners alleged violations of the American Convention Articles 4, the right to life; 5, the right to humane treatment; 13, freedom of thought and expression; 21, right to property; 23, the right to participate in the government; 24, the right to equal protection; and 29, which restricts interpretation of the Convention. The petitioners assert that these violations also contravene Articles 1 and 2 of the American Convention, which establish the states’ responsibility to respect and enforce these rights, as well as the Indigenous and Tribal Peoples Convention 169 (Convention 169) of the International Labor Organization’s (ILO) Labor Standards.

The petitioners contend that the Government of Peru did not consult with them before beginning expansive mining and drilling operations on indigenous people’s lands. Article 15 of Convention 169 requires that a government consult with its indigenous peoples to ascertain “whether, and to what degree, their interests would be prejudiced, before undertaking or permitting any . . . exploration or exploitation of [natural] resources pertaining to their lands.” The government must provide compensation if the exploration or exploitation is agreed to. To ensure these rights, the Peruvian Congress passed the Law of Previous Consultation in 2010, but the executive branch “paralyzed” the law and turned consultation into a “mere procedural step” which the State can override if the parties do not arrive at an agreement. The petitioners claim that these government policies lack the requirement of consultation with indigenous peoples prior to expropriation of land and resources, and violate the rights of indigenous peoples as guaranteed by Convention 169 and the American Convention.

José Luis Carvajal, the General Director of Conflicts of the Ministry of Energy and Mines of Peru highlighted some of the positive steps made toward encouraging dialogue between government agencies, indigenous organizations, and oil companies. For instance, since 2005 the government has hosted a meeting for state representatives, indigenous organizations, civil society organizations, and hydrocarbon corporations. Carvajal noted that the state is creating a multi-sector approach to energy policy, including the formation of 17 Ministries of the Executive Branch to achieve “significant advances” in providing the right of consultation to indigenous peoples through broad working groups.

Commissioner Felipe González asked for the State’s plan to transition into the implementation of a more robust consultation process.  The petitioners informed the Commissioner of a Constitutional Court of Peru ruling which held that the current consultation process is inadequate under Convention 169, which requires “[the State to] consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly.” The State, through Delia Muñoz, the Procuradora Supranacional of Peru, responded that the ILO is now providing technical assistance to the government on developing procedures for proper engagement with indigenous peoples. The new procedures include a period of public review of the potential impact of resource extraction to be undertaken. Further, in compliance with the Constitutional Court’s ruling, there will be an additional period of consultation before any final decision that would impact the rights of indigenous peoples. The state maintains however, that even though they accept the assistance from the ILO, Convention 169 lacks binding authority. The petitioners rejected this view, but said they recognize the state’s efforts to create dialogue and urged the state to continue working to mediate problems and social conflicts.

The State closed the meeting by noting that much of the dissatisfaction expressed by indigenous groups stems from inadequate compensation. The State blamed local municipalities, claiming they create a “bottle-neck” effect that prevents local communities from receiving the benefits they require. The state stressed that the government has passed “urgent measures” to ensure that indigenous groups affected by mining operations receive compensation in a timely fashion. While Peru has cited positive changes in the consultation process, it is still uncertain whether the indigenous groups will have sufficient voice in these new procedures to protect their rights. If the perceived economic benefit is great enough, it seems unlikely that any level of previous consultation will be sufficient to protect the rights of indigenous peoples in Peru.