Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes a communication from the General Confederation of Workers of Peru (CGTP) concerning Peru’s compliance with the Convention, enclosing the Alternative Report of 2008 on the application of the Convention in Peru received on 5 August 2008 and sent to the Government on 1 September 2008. This report was drawn up with the participation of the Inter-Ethnic Association for the Development of the Peruvian Rainforest (AIDESEP), the Peasant Farmers’ Confederation of Peru (CCP), the National Agrarian Confederation (CNA), the National Coordinating Committee for Communities affected by Mining (CONACAMI), the Regional Association of the Indigenous Peoples of the Central Rainforest (ARPI), the Ucayali AIDESEP Regional Organization (ORAU) and non-governmental organizations belonging to the Indigenous Peoples Working Group of the National Coordinating Committee on Human Rights. The Committee also notes two communications from the General Union of Grau Tacna Commercial Centre Wholesalers and Retailers (SIGECOMGT), one dated 17 September 2007 and sent to the Government on 27 September 2007, the other dated 28 March 2008 and sent to the Government on 2 May 2008. In addition, in its observation of 2007, the Committee noted another communication from the CGTP and a communication from SIGECOMGT which were sent to the Government, but which the Committee did not examine because of the Government’s indication that, owing to the severe earthquake which occurred in Peru on 15 August 2007, it had not been in a position to supply information, and for that reason the Committee will examine both of these communications on this occasion. The Committee also notes the indication in the Government’s report, received on 17 October 2008, that it had received the alternative report from the CGTP on 5 August. However, the Government has not yet provided comments on the communications. Because of the late arrival of the Government’s report, the Committee will consider some items in the report relating to the communications and will examine it in detail in 2009, together with the reply to the present comments.

Article 1 of the Convention. Peoples covered by the Convention. The communications indicate that various categories are referred to in Peru to designate and recognize indigenous peoples. Consequently, it is unclear to whom the Convention applies. They explain that the legal term “indigenous peoples” is not found in the Constitution, and that the legal term established by the colonial authorities, and recognized by the Constitution and most of the legislation is the word “community”. There are both rural and native communities in the country, with 6,000 communities registered at present. The terms “native communities”, “rural communities” and “indigenous peoples” are used inconsistently sometimes to mean similar or different things, depending on the laws in question. The communications indicate that the extent to which the Convention is applied varies. For example, in the case of “native communities”, positive measures have been adopted to enhance the right to consultation. However, there has been little progress in the application of the Convention to rural communities of the coastal and highland regions.

The Committee notes the Government’s statement that section 2 of the regulations relating to Act No. 28945 concerning the National Institute of Andean Peoples establishes the definitions applying to the Andean, Amazonian and Afro-Peruvian peoples. The Committee notes the Government’s indication that peasant farmers’ communities and native communities are placed on a similar footing to indigenous peoples with regard to the recognition of their ethnic and cultural rights, with emphasis on the social, political and cultural aspects. This appears to be a positive statement as it confirms indications from previous reports from the Government and comments from the Committee to the effect that indigenous communities are covered by the Convention irrespective of what they are called. However, there appear to be inconsistencies in the application of the Convention as regards its coverage. The Committee considers that, where rural communities meet the requirements of Article 1(1) of the Convention, they must enjoy the full protection of the Convention regardless of differences from or similarities to other communities and irrespective of what they are called.

The Committee has been referring to this matter for a number of years and in its direct request of 1998 the Committee suggested “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 notes from the communications received that there seem to be different degrees of application of the Convention, according to the name given to the community. It also observes that the inconsistent terminology used in different laws creates confusion and that the different names or characteristics of the peoples concerned are irrelevant if they come within the scope of Article 1(1), of the Convention. The Committee reiterates that the concept of “indigenous peoples” is broader than that of the communities to which such peoples belong and that, whatever such communities are called, it is irrelevant for the purposes of the application of the Convention, as long as “native”, “rural” or other communities are covered by Article 1(1)(a) or (b), of the Convention. Therefore the provisions of the Convention should be applied to all of them equally. This does not imply that specific action targeted at specific needs of certain groups cannot be taken. This is the case, for example of communities with which no contact has been established or those living in voluntary isolation. The Committee again draws the Government’s attention to the fact that the various terms used and the difference in legislative treatment cause confusion and make it difficult to apply the Convention. The Committee therefore requests the Government once again, in consultation with the representative institutions of the indigenous peoples, to establish harmonized criteria to define the coverage of the Convention so as to avoid the confusion resulting from the various definitions and names given to them, and to provide information in this respect. The Committee also urges the Government to take the necessary measures to guarantee that all the peoples referred to in Article 1 of the Convention are covered by all of the Convention’s provisions and enjoy the rights set out therein on an equal footing, and to provide information in this respect.

Articles 2 and 33. Coordinated and systematic action. The CGTP alleges blatant and systematic lack of compliance with Article 33 of the Convention with regard to the State’s obligation to ensure that agencies or other appropriate mechanisms exist to administer the programmes affecting the peoples concerned and that they have the means necessary for the proper fulfilment of the functions assigned to them. It states that the National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) was established in 2005, by means of Act No. 28.495, as a participatory body with administrative and budgetary autonomy, whose principal mandate is to design national policies for the promotion and protection of indigenous and Afro-Peruvian peoples, and supervise and coordinate their implementation. The CGTP states that although there are indigenous representatives on the Executive Board of the INDEPA, the disparity in representation is clear, meaning that decisions tend to be imposed by the State. Furthermore, most decisions are taken in any case without the participation of the Board. The trade union refers to the lack of real power of INDEPA within the Ministry for Women’s Affairs and Social Development, undermining its functionality and undermining the effective participation of the indigenous representatives in the decision-making process. The CGTP asserts that INDEPA must be strengthened. The Committee reiterates its previous statements that Articles 2 and 33 are complementary, and that to ensure the correct application of Article 2, which states that “governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples”, it is essential that the agencies or other appropriate mechanisms provided for in Article 33 are established. The Convention also provides that measures aimed at applying its provisions shall be formulated in a systematic and coordinated manner, in cooperation with the indigenous peoples. This presupposes the establishment of the appropriate bodies and mechanisms. The Committee requests the Government to establish, with the participation of the indigenous peoples and in consultation with them, the agencies and mechanisms provided for by Article 33 of the Convention, to ensure that such agencies or mechanisms have the means necessary for the proper fulfilment of the functions assigned to them, and to supply information on the measures taken in this regard.

Articles 6 and 17. Consultation and legislation. The Committee notes the adoption on 19 May 2008 of Legislative Decree No. 1015, amending the number of voters required for disposing of communal land. The CGTP states that, in the face of widespread criticism, this Decree was amended on 28 June 2008 by Legislative Decree No. 1073, which also eases conditions for disposing of communal land, but there was no consultation on the adoption of such legislation. The Committee draws the Government’s attention to the fact that, according to Article 6(1)(a) of the Convention, governments shall 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, and, according to Article 17(2), the peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community. The Committee recalls that the Governing Body referred to a similar question in 1998 in relation to Act No. 26845 (GB.273/14/4) and stated that “under Article 17(2) of the Convention, the peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community. In this case, in particular, the Committee notes that there is no indication that consultations have been held on the implications of these measures to establish title with the people concerned as provided by the Convention”. The same report also reminded the Government of its obligation to hold consultations under the terms of Article 17(2), including on the scope and implications of the proposed measures. The Committee expresses its concern at the fact that, ten years after the publication of the aforementioned Governing Body report, communications are still being received alleging a lack of prior consultation with respect to the adoption of the measures provided for in Articles 6 and 17(2) of the Convention. The Committee urges the Government to take steps, without further delay, with the participation of the indigenous peoples, to establish appropriate consultation and participation mechanisms and to consult the indigenous peoples before the adoption of the measures referred to in Articles 6 and 17(2) of the Convention, and to provide information in this respect.

The Committee notes the statement by SIGECOMGT that draft Acts Nos 690 and 840 are being examined by Congress, relating to the promotion of private investment in the lands of Amazonian indigenous peoples, without their consultation. The Committee requests the Government to ensure that consultations are held with regard to these projects and to supply information on the consultations held.

Articles 2, 6, 7, 15 and 33. Participation, consultation and natural resources. The communications refer in detail to numerous serious situations of conflict connected with a dramatic increase in the exploitation of natural resources, without participation or consultation, on lands traditionally occupied by indigenous peoples. Mining accounted for less than 3 million hectares in 1992 but increased to 22 million hectares in 2000, and 3,326 out of 5,818 communities recognized in Peru were affected. The “emblematic cases” referred to include the Río Blanco mining project. The CGTP indicates that the underlying discussion in Río Blanco relates to the kind of development desired by the population, which drew up a sustainable alternative proposal for the region entitled “Vision for a shared and sustainable future” which did not include mining but the Government ignored this initiative. With regard to the 75 million hectares of oil and gas deposits in Peruvian Amazonia, more than 75 per cent are covered by oil and gas sites imposed on indigenous lands. The communications refer in detail to numerous cases of exploitation of natural resources without participation or consultation, and attach a December 2006 report from the Office of the People’s Ombudsperson entitled “Socio-environmental disputes as a result of mining and allied activities in Peru”, which raises the alarm with regard to the gravity of the situation, indicating that the indigenous and peasant peoples are those most affected in those cases. It also mentions that those peoples are not always opposed to exploration or exploitation but merely wish to have a share in the benefits of such activities.

The communication sent by the CGTP refers to the recent Decree No. 012-2008-EM issuing regulations on people’s participation in oil and gas sector activities. It claims that this Decree gives legal backing to the monitoring activities promoted by the companies but that the same backing does not exist for community monitoring, thereby creating conditions for manipulation and co-option. With respect to forestry exploitation, it states that although Act No. 27308 formally protects the rights of indigenous peoples, the latter have received no technical or economic support in practice, effective policies and controls are lacking, and forestry concessions have been superimposed on communal lands, with 18 cases in Ucayali. The communication from SIGECOMGT refers to various cases of presumed violations of the Convention in relation to the extraction of natural resources, consultations and land rights, with serious consequences due to pollution of the environment, particularly water, as a result of mining activities. Particular reference is made to the activities of the Barrick Misquichilca company in Huaraz de Ancash province and the activities of the Newmont mining company in Tacna. With regard to forest resources, 53,000 hectares of the virgin Loreto forest have reportedly been assigned to a concession for reforestation without consultation of the indigenous communities or their participation.

The Government has not sent any reply to these comments but states that, in May 2008, by means of Supreme Decree No. 020-2008-EM of the Directorate-General of Social Management at the Ministry of Energy and Mining, it issued the regulations concerning citizens’ participation in oil and gas sector activities which, according to the report, gives effect to Articles 2, 7, 13, 15 and 33 of the Convention. It states that the adoption of the regulations involved substantial participation of the citizens. It also states that the following legislation has been adopted to this end: Supreme Decree No. 012-2008-EM issuing regulations on the people’s participation in oil and gas sector activities; Supreme Decree No. 015-2006-EM issuing regulations on protection of the environment in relation to the development of activities in the oil and gas sector; and Supreme Decree No. 020-2008-EM issuing environmental regulations in relation to mining activities. Since January 2008, the Ministry of Energy and Mining has been promoting tripartite dialogue meetings with the participation of the Government, the private sector and indigenous leaders in the regions of Madre de Dios, Loreto and Ucayali, and coordinating committees have been established in the last two of these regions. Furthermore, the “National programme for hydrographic basins and land conservation (PRONAMACHS)” of the Ministry of Agriculture makes participation the key element in its strategy.

The Committee notes from the Government’s report that the Government has made some effort with regard to consultation and participation; however, it is concerned that from the communications, drawn up with full participation of the indigenous peoples, and the report from the Office of the People’s Ombudsperson that these efforts appear to be isolated and sporadic and at times not in line with the Convention (for example, information meetings being held rather than consultations). There is a lack of participation and consultation for tackling the numerous disputes connected with the exploitation of resources in lands traditionally occupied by indigenous peoples. The Committee expresses its concern regarding the communications received and the lack of comments on them from the Government. The Committee urges the Government to adopt the necessary measures, with the participation and consultation of the indigenous peoples, to ensure (1) the participation and consultation of the indigenous peoples in a coordinated and systematic manner in the light of Articles 2, 6, 7, 15 and 33 of the Convention; (2) the identification of urgent situations connected with the exploitation of natural resources which endanger the persons, institutions, property, work, culture and environment of the peoples concerned and the prompt application of special measures necessary to safeguard them. The Committee requests the Government to supply information in this respect, together with its comments on the communications received.

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 2009.]