Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

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

1. The Committee notes the Government's detailed first report and the conclusions of the Governing Body at its 273rd Session on the representation made under article 24 of the Constitution concerning the application of certain Articles of the Convention. The Committee requests the Government to provide additional information on the following points.

2. Article 1 of the Convention. The Committee requests the Government to provide more detailed information on the number of persons considered to be indigenous in the 1993 census and those who are considered to be rural workers, since it would not appear from the available texts that a distinction is made. Furthermore, the number of persons belonging to rural and native communities appears to be fairly low in relation to the total number of inhabitants. The Committee suggests that the Government might develop harmonized criteria for the populations which may be covered by the Convention, since the various definitions and terms used may give rise to confusion between rural, indigenous and native populations and those living in the highlands, the forest and cleared land. The Committee would be grateful to be provided with specific information on the criteria taken into account in the 1993 census to determine the indigenous origin of the persons covered by the census and on whether the criterion of "self-identification" was taken into consideration to determine the groups covered by the Convention, as required by paragraph 2 of this Article.

3. Article 2. The Committee requests the Government to provide additional information on specific programmes for indigenous communities and their participation in the formulation of such programmes.

4. The Committee notes that the Peruvian Indigenous Institute (IIP) was described by the Government in its first report as the central organization for the coordination of government action in relation to indigenous peoples in the country. The Committee notes that the Institute has been abolished since the sending of the report and its staff is now part of an "indigenous unit" in the Ministry for the Promotion of Women and Human Development and it requests the Government to indicate whether the indigenous unit has assumed all the functions of the IIP and, if not, to specify the government body which is currently responsible for developing "coordinated and systematic action", as required by Article 2.

5. With regard to the Act respecting private investment in the development of economic activities on the lands of the national territory and of rural and native communities, which was enacted after the ratification of the Convention, the Committee requests the Government to inform it whether the peoples concerned participated in its formulation, as provided for by Article 2. Furthermore, the Committee would be grateful to be provided with information on the activities currently undertaken by the National Institute for Rural Development (INDEC). Moreover, in the context of a direct request in 1992 on Convention No. 107, the Committee recalled that the Government had proposed to undertake a study on the possibility of adopting measures to improve the situation of indigenous peoples living on marginal cultivable land in urban areas. Since no new information is provided in the current report on this study, the Committee requests the Government to provide information on any new measure which has been taken in this respect.

6. Article 3. The Committee requests information on the rights of persons who are considered to be indigenous, despite not being included in the census as such because they do not have a name of indigenous origin. Furthermore, it requests information on whether appropriate mechanisms exist to apply the legislation in cases in which allegations are made of discrimination on the grounds of the ethnic origin of the individual.

7. Article 4. The Committee would be grateful to be provided with fuller information on any special measures which have been adopted to overcome the difficulties encountered by indigenous peoples in economic and social transition.

8. Article 6. The Committee recalls that the apparent lack of consultation was one of the grounds for the conclusions reached by the tripartite committee established by the Governing Body to examine the representation made under article 24 of the Constitution. The Committee therefore requests the Government to provide specific information on the implementation in practice of consultation procedures with indigenous communities, the means of carrying out this type of consultation and, in particular, whether such consultations, if they are held, are undertaken in an appropriate form to give these communities a voice in cases in which their interests may be affected. Furthermore, the Committee requests the Government to state whether the functions of the former Peruvian Indigenous Institute in promoting the participation of indigenous peoples in all stages of the "analysis of their problems", the planning of action for their development and in any programme which affects or includes them, have been transferred to the indigenous unit of the Ministry for the Promotion of Women and Human Development.

9. Article 7. The Committee requests the Government to provide detailed information on the activities of the indigenous unit of the Ministry for the Promotion of Women and Human Development, which replaced the Peruvian Indigenous Institute, with regard to studies which have been undertaken recently on the impact of certain development programmes on the life, environment and culture of the indigenous peoples concerned, particularly as regards the impact of the arrival of oil companies in regions traditionally occupied by indigenous peoples.

10. Article 8. The Committee requests the Government to provide practical examples of the application of this Article, and particularly any judicial rulings in which account has been taken of the customs or customary laws of indigenous peoples.

11. Article 9. The Committee requests the Government to provide more detailed information on the activities of rural councils and the role that they play in dealing with offences committed by members of indigenous peoples. The Committee also requests information on the application in practice of article 149 of the Constitution. Furthermore, the Committee requests the Government to transmit copies of any judicial rulings applying section 15 of the Penal Code.

12. Article 12. The Committee requests information on the manner in which the provisions of the Constitution and of the Organic Act respecting the judicial authority are applied with regard to the right to use their own language before the judicial authorities, whether each ruling notes the presence of official interpreters and whether any financial allocation is made to give effect in practice to these legal provisions.

13. Article 14. The Committee notes that section 11 of Act No. 26505 leaves open the possibility for commercial laws in regions with a high poverty level or which are rich in minerals and oil to induce these peoples to give up their traditional lands. The Committee is of the opinion that this could facilitate the dispersion of communal territories. Furthermore, section 6 of the above Act makes any judicial action involving rights to lands intended for agricultural, stock raising or forestry subject to the procedures set out in the Code of Civil Procedure, which could constitute a disadvantage for indigenous peoples in remote areas or where they have little knowledge of the functioning of judicial procedures in relation to their land rights.

14. The Committee recalls that the Convention provides that governments shall take steps as necessary to guarantee effective protection of the rights of ownership and possession of these peoples and that adequate procedures must be established to resolve land claims by these peoples. This also means that governments have to take the necessary steps to identify the lands which the peoples concerned traditionally occupy and guarantee effective protection of their rights of ownership and possession. The Committee requests more detailed information on the manner in which the Special Project for Establishing Title to Lands and the Rural Land Registry operates in practice, the number of lands for which title has been granted to indigenous peoples and to non-indigenous persons, the financial cost of the procedure, if any, and finally the requirements to be met to obtain title to lands and the legal texts governing the procedure. The Committee requests the Government to send a copy of Legislative Decree No. 838 of 15 August 1996 on the award of land rights free of charge in the forest for indigenous and non-indigenous persons.

15. Article 15. The Committee recalls that the provisions of this Article have to be read in conjunction with Articles 6 and 7 respecting the effective consultation of the peoples concerned so that they can participate actively in decisions which concern them. Furthermore, it is necessary to consider the social, spiritual, cultural and environmental impact of any activities undertaken and to guarantee that the peoples concerned can participate effectively in decisions which may concern them. In this respect, the Committee requests the Government to provide specific information on how effect is given to this Article of the Convention, particularly with regard to the consultations held with the peoples concerned in the event of the exploration and exploitation of natural resources in indigenous areas. Moreover, the Committee requests the Government to provide detailed information on the environmental and cultural impact of exploration and exploitation activities, particularly those carried out by multinational oil companies in areas of the Amazon in which there are peoples that are still isolated and have not come into contact with the national society. Furthermore, it requests information on the possibility of enacting legal provisions which clearly establish consultation mechanisms guaranteeing the effective participation of the peoples concerned. It also requests information on the result of a general study, commissioned by the Peoples' Ombudsman in September 1998, on a complaint made by the Centre for the Development of Amazonian Indigenous Peoples (CEDIA) against the National Institute of Natural Resources (INRENA) on the situation of the native communities involved in protected natural areas. The Committee would be grateful if the Government would transmit the full text of Act No. 26631, of 12 June 1996, establishing rules on the registration of complaints for violations of environmental legislation.

16. Article 16. The Committee requests information on the provisions that are applicable to the expropriation of lands belonging to or occupied by the various indigenous communities in the country and on the manner in which this Article is applied in practice. The Committee also requests the Government to provide detailed information on whether there exists general support programmes for the return of indigenous peoples who have been displaced by violence or other circumstances against their will and, if so, to provide information on the number of indigenous persons who have returned to their traditional lands, those for whom it has not been possible to return and whether there is any type of project to relocate them in lands of equal quality and legal status to the lands they previously occupied.

17. Article 17. The Committee refers to its observation concerning the representation which has been examined by the Governing Body. It also requests the Government to provide specific information on the application of Decree No. 838 of 1996 and on the possibility of adopting legal measures which provide clear and effective protection to indigenous peoples against the purchase, possession or use of their lands by non-indigenous persons.

18. Article 18. The Committee requests the Government to provide information on the imposition of penalties on any non-indigenous persons who have intruded or fraudulently occupied lands belonging to indigenous peoples, and on the procedures to be followed in such cases.

19. Article 19. The Committee requests the Government to provide information on any specific agrarian programmes which may exist for indigenous peoples in general, both in the Andean area and in the Amazonian region, as well as on the coast. Furthermore, it requests information on whether the necessary means have been provided to these peoples for the development of their lands at the time of the granting of lands or title to them.

20. Article 20. The Committee requests the Government to provide information on: the medical assistance provided to indigenous workers through the social security system; whether they are provided with the same coverage as non-indigenous workers; and on the results of labour inspections, whether these inspections reveal marked differences in treatment and wages between indigenous and non-indigenous workers and, if so, the regions in which this type of discrimination occurs with the greatest frequency.

21. Furthermore, the Committee requests detailed information on the health and safety services of the Labour Inspectorate, particularly to enable effective participation in inspections in rural areas in which a large number of indigenous persons work. The Committee also requests the Government to provide statistics on the number of inspections in rural areas, especially those related to the work of indigenous peoples. On this point, see also the Committee's observation of 1997 on Convention No. 81.

22. Article 21. The Committee requests the Government to provide detailed information on whether indigenous peoples enjoy access under conditions of equality and participate in vocational training programmes intended for the general population, as well as on any specific measure adopted for these peoples.

23. Article 22. The Committee urges the Government to establish vocational training programmes intended for the indigenous peoples concerned and designed jointly with them to take into account the specific training needs of these peoples so that, after a determined period, they can manage and design training programmes both for their communities and for other indigenous communities. In this respect, the Office could initially provide technical assistance in the field of vocational training.

24. Articles 23 to 25. The section of the report covering these Articles was not received. The Committee requests the Government to provide information on the application of these Articles of the Convention in both law and practice.

25. Articles 26 to 30. The Committee requests the Government to provide detailed information on the practical action taken by the Government to give effect to these Articles, on the educational materials used for the training of instructors, and on any other materials used to make known to indigenous peoples their rights and duties.

26. Article 33. The Committee requests the Government to state which agency currently applies this Article of the Convention in view of the abolition of the Peruvian Indigenous Institute, and particularly the government agencies or bodies responsible for proposing legislative and other measures to the competent authorities.

27. Point VIII of the report form. The Committee reminds the Government that this point of the report form for the Convention, which was approved by the Governing Body, indicates that although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention and in preparing reports on its application. Since such information was not provided by the Government in its first report, please state whether such consultations were held in practice.