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PERU: Native Peoples’ Right to Consultation on Land Use Enshrined in Law

Milagros Salazar

LIMA, May 28 2010 (IPS) - Indigenous peoples in Peru finally have a law that obliges the state to consult them about any project or provision that affects their territory or communities. But it will be difficult to implement, as the body charged with this task is in need of reforms, and additional legislation is needed before it can be fully enforced.

It took the single-chamber Congress 16 years to pass the law on indigenous peoples’ right to prior consultation after the country ratified International Labour Organisation (ILO) Convention 169, which commits nations to protecting indigenous and tribal peoples.

Native peoples must be consulted in advance on any legislative or administrative measure, development or industrial project, plan or programme that directly affects their collective rights, according to the new law approved by the legislature on May 19.

The Peruvian Ombudsman’s Office said the law is a momentous step in recognising indigenous peoples and institutionalising “intercultural dialogue between (native peoples) and state authorities.”

The new law comes at a time when private investment projects are mushrooming in ancestral indigenous territories, generating a number of high impact social conflicts. The most serious took place Jun. 5, 2009 in the northern Amazon jungle province of Bagua, where 33 demonstrators and police were killed when the security forces clamped down on indigenous protesters.

Over 70 percent of Peru’s Amazon region has been handed over as concessions to oil companies, while in the Andean regions licenses for mining projects are proliferating.

In 1994 Peru ratified ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries, which establishes in article 6 the right of native peoples to be consulted on matters affecting their territories and way of life.

One-third of Peru’s population of 28.7 million are indigenous people. There are 7,515 recognised native rural communities, of which 6,067 are in the Andean highlands and 1,448 in the Amazon rainforest.

Indigenous organisations welcomed the new legislation passed this month and demanded that President Alan García sign it into law without any changes. The president has 15 days to approve laws voted by Congress or to return them with “observations” indicating his proposed modifications.

The response of business associations to the law has been lukewarm. The president of the National Confederation of Private Business Associations (CONFIEP), Ricardo Briceño, said it is not entirely satisfactory because it does not expressly ban indigenous peoples from exercising the power of veto.

Without question, “fulfilling the law will require effort from all sides in the dialogue process,” Iván Lanegra, assistant director for the environment, public services and indigenous peoples at the Ombudsman’s Office, told IPS.

Article 3 of the new law states that agreement or consent must be reached between the state and indigenous peoples in the consultation process. If that is not possible, the state is required to act to protect the rights of the native population.

The law also sets criteria for identifying indigenous peoples, and defines the stages that must be completed as part of the consultation process. In addition, it appoints the National Institute for the Development of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) as the government agency responsible for implementing and enforcing the law.

The Ombudsman’s Office, which presented the bill to Congress in July 2009, after the tragedy at Bagua, says the law substantially reflects the original text it introduced, and that approval by the government is part of the commitments that the García administration made to native communities in the Amazon.

Lanegra said that INDEPA is in need of reforms because it lacks the authority, resources and capabilities to fulfil its new role.

The law will come into effect 90 days after its publication in the official gazette, El Peruano, so that there is enough time for “the government agencies responsible for carrying out the consultation processes to be provided with the necessary budget resources and organisational capabilities,” the text says.

According to Lanegra, the Ministry of Energy and Mines is one of the bodies that will have to adjust most heavily to the provisions of the new law, because a number of its investment projects are located on indigenous lands.

The Muqui Network, a local non-governmental organisation (NGO) that works for sustainable development and community rights in mining areas, said that the public hearings currently held by the ministry as a form of community participation in mining projects are no substitute for the consultations with indigenous peoples stipulated in the new law.

It also said there are three basic conditions for the consultations: they must be held before the state has decided on the future use of indigenous territories; participation must be free and voluntary, with no pressure or abuse of power; and concerned parties must have access to full, comprehensible and relevant information with an inter-cultural focus.

Asunta Santillán, an expert on indigenous affairs with Law, Environment and Natural Resources (DAR), another local NGO, told IPS that indigenous peoples will have to be consulted on the forestry and environmental bills, as well as on the executive branch’s plans to relocate people living in areas slated for investment programmes of national interest.

The head of INDEPA, Mayta Cápac Alatrista, told IPS that his institute is setting up a dedicated office to handle the consultation processes and enforce the law, which will need to be staffed by qualified personnel.

The institute will be in charge of coordinating the consultation processes, training the government officials and indigenous communities that will be participating, registering native organisations and representatives, and setting up a database with detailed information about the indigenous peoples.

“We are aware of the challenge and we know we must make changes in the institute,” Alatrista said. He added that the biggest challenge will be persuading government workers to appreciate inter-cultural dialogue and to value diversity.

In April, Alatrista asked the cabinet to appoint nine indigenous representatives to INDEPA’s 21-member board of directors, and that they be elected by the indigenous communities themselves, he said.

He acknowledged that the five offices INDEPA has opened in different regions since December are insufficient to oversee enforcement of the new law, and said the institute’s annual budget will fall short.

INDEPA has 3.5 million dollars to fund all its activities for 2010, and it is still undetermined whether an additional amount will be allocated to carry out its new responsibilities under the law. “There is a great deal to be done,” Alatrista said.

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