Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

1. Articles 2 and 33 of the Convention. Coordinated and systematic action to give effect to the provisions of the Convention with the participation of indigenous peoples. The Committee notes that the National Commission of Andean, Amazonian and Afro-Peruvian Peoples (CONAPA), attached to the Office of the President of the Council of Ministers, which has the function of approving, planning, promoting, coordinating, directing, supervising and evaluating policies, programmes and projects for the populations concerned, was established by Presidential Decree No. 111-2001-PCM in 2001. It notes with interest that in 2003, with international cooperation, CONAPA facilitated some 20 meetings and workshops on identity, consultation, participation, sustainable development and the strengthening of indigenous organizations. The Committee considers that the participation of indigenous peoples in the policies that affect them is essential for the effective application of the provisions of the Convention. The Committee would be grateful if the Government would provide information on the way in which the various indigenous organizations are represented in CONAPA and on their participation and the activities carried out by the above Commission. Also noting that CONAPA has proposed reforms to the Political Constitution of Peru for the introduction of a new chapter on the rights of indigenous peoples and Afro-Peruvian populations, the Committee invites the Government to provide a copy of the proposed text and to keep it informed of developments in this regard.

Community of Santo Domingo de Olmos

2. Article 14. Since 2000, the Committee has been examining a communication from the Central Confederation of Workers of Peru (CUT) stating that the Government expropriated 111,656 hectares of the ancestral lands belonging to the indigenous community of Santo Domingo de Olmos through Supreme Decree No. 017-99-AG and that these lands are reported to have been conceded to private investors to carry out a hydroelectric project, with no compensation whatsoever being paid to the indigenous community concerned. The Government indicated that the action did not constitute an expropriation and that the ownership rights of third parties had been safeguarded.

3. In its 2002 observation, the Committee examined in detail the legislation governing the legal status of agricultural lands, including Act No. 26505 of 17 July 1995 on private investment in economic activities carried out on the lands of the national territory and of rural and indigenous communities, and its regulations. It noted that section 4 of the impugned Decree establishes as uncultivated land (eriazas) 111,656 hectares to which the Olmos community asserts ancestral rights, and provides in section 5 for the said land to be registered for the Olmos Special Hydroenergy Irrigation Project. It pointed out that although, according to the Government, the expropriation procedure had not continued, lands to which an indigenous community is claiming ancestral rights had been incorporated in the domain of the State and conceded to private parties. In this regard, it noted four resolutions showing the existence of traditional occupation and the will of the Olmos community not to forego these rights. It also noted with concern that, according to the CUT, the 111,656 hectares are of strategic importance for the communities and that much of the remaining area is constituted by hills and is subject to water-related problems; it also recalled that, in 1998, it had already indicated concern that Act No. 26505 might lead to the dispersion of the lands of indigenous communities.

4. The Committee drew the Government’s attention to the fact that what it refers to as incorporation into the domain of the State constitutes, as there had been traditional occupation, a denial of the rights of ownership and possession established in Articles 13 to 15 of the Convention, regardless of the procedure used. The Committee asked the Government to take the necessary steps, in accordance with Article 14, paragraph 2, of the Convention, to identify, in consultation with those concerned, as required by Article 6, the lands which the above people traditionally occupy and it invited it to take the appropriate steps to ensure the effective protection of their rights.

5. In its last report in 2004, the Government reiterates that, in accordance with Act No. 26505 and its regulations, uncultivated land (eriazas) suitable for agricultural use and stock-raising is in the domain of the State and that the ownership rights of third parties are safeguarded. It adds that, if the ownership of the lands in question by the rural community of Santo Domingo de Olmos were confirmed, an expropriation procedure could then be initiated, in accordance with Act No. 27117, the General Expropriations Act, but as this process was not used, it is not appropriate to talk of expropriation. The Government indicates that article 89 of the Political Constitution of Peru provides that rural and indigenous communities shall enjoy legal existence and incorporation, the ownership of their lands imprescriptible and that they can have legal recourse through national law to assert ownership rights. The Government adds that in 2001 the Constitutional Court upheld a ruling handed down by another court that declared the constitutional protection ("amparo") proceedings initiated by the community inadmissible owing to the fact that the community had not been registered or presented a registration certificate. It adds that, according to the latest information communicated by the Government, although the community of Olmos has now formalized its legal personality, it lacks legitimate legal representation, which is a prerequisite when seeking the formalization of its land ownership by the competent body, the National Agrarian Directorate of the regional government of Lambayeque, and that the community has to determine its own formal legal representation.

6. Article 14, paragraph 3. Adequate procedures to resolve land claims. The Committee recalls that, although the Decree in question safeguards the ownership rights of third parties, the Convention not only protects ownership rights, but also traditional occupation. It also recalls that, under the terms of the Convention:

-  governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession (Article 14, paragraph 2); and

-  adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned (Article 14, paragraph 3).

The Committee emphasizes that Article 14 of the Convention protects not only those lands to which the peoples concerned already have title of ownership, but also those lands that they traditionally occupy. Adequate procedures are required to determine the existence of traditional occupation. The Committee notes that the merits of the case were not examined, but the Court ruled that the "amparo" proceedings were inadmissible on grounds of form. The Committee therefore requests the Government to take the appropriate measures, in consultation with the community concerned, to identify and eliminate those obstacles, procedural or otherwise, encountered by the community of Olmos in asserting effectively its claim to the lands which it alleges that it has traditionally occupied, so that it may avail itself of the recourse envisaged in Article 14, paragraph 3, of the Convention and, where appropriate, obtain effective protection of its rights. The Committee hopes that in its next report the Government will be in a position to provide information on the progress achieved in this regard.

The Committee is addressing a request directly to the Government.