Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee refers to its observation of 2013 and requests the Government to include information in its next report on the effect given to the provisions of Parts IV, V, VI and VIII of the Convention. The Government is also requested to include information on the following matters.

Article 1 of the Convention. Peoples covered by the Convention. The Government indicates in the report received in September 2013 that the Office of the Deputy Ministry for Inter-Cultural Affairs has drawn up and published a list of 52 indigenous peoples, with four in the Andean zone and 48 in Amazonia, which will be used for updating the official database of indigenous or original peoples. The Government indicates that the bodies sponsoring administrative or legislative measures that necessitate consultation are responsible for identifying the indigenous peoples, including native and farming communities, in each specific case. The Committee recalls that awareness of indigenous identity is a key criterion in determining the groups to be covered by the Convention. The Committee invites the Government to provide information in its next report on the operation of the official database of indigenous or original peoples and on the manner in which it is ensured that specific groups of the national population have not been excluded from measures intended to give effect to the Convention.

Articles 2 and 33. Coordinated and systematic action. The Government supplies information on the meetings held between October 2012 and September 2013 by the temporary working group on institutional matters relating to indigenous or original peoples, composed of representatives of ten indigenous organizations. The working group agreed that the body responsible for indigenous public policies should have a budget and a permanent mechanism to ensure the effective participation of the representatives of the indigenous peoples. The Committee notes the social programmes of the Ministry of Social Development and Inclusion (MIDIS), which have been designed taking account of the collective rights of indigenous peoples. The Committee requests the Government to include information in its next report on the measures taken by regional governments to apply the Convention, and also on the implementation of ministerial plans and programmes which have taken account of the matters covered by the Convention. The Committee again invites the Government to indicate how the participation of the peoples concerned has been ensured in the development of the aforementioned programmes and plans (Article 2(1)). The Committee points out that the planning, coordination, execution and evaluation of measures must be undertaken in cooperation with the peoples concerned (Article 33(2)) and hopes that the next report will include an evaluation of the programmes and plans as required by the Convention.

Article 14. Lands. The Government indicates that the Ministry of Agriculture, as the body in charge of national agrarian policy, is responsible for devising the process of restructuring and formalizing agrarian ownership, and regional governments are responsible for implementing that process. The 2013 Alternative Report states that 16 per cent of the recognized 6,069 farming communities and 1,469 native communities still have no land ownership titles. The Committee asks the Government to include detailed information in its next report on the land registration and titling processes conducted by regional governments, specifying the surface areas titled and the beneficiary communities in each region of the country. The Committee also requests the Government to provide examples of the manner in which the difficulties faced by indigenous communities in relation to land claims have been resolved.

Article 15. Regulation of the use of forestry resources and the mining and energy sector. The Government reiterates in its report that it is continuing its review of national forestry policy with the participation of the indigenous peoples of Peruvian Amazonia and the Andean peoples. The Government supplies detailed information on various forms of progress made by the Ministry of Agriculture with regard to forest resources, including, firstly, the adoption of a “methodology guide” relating to the decentralized participation process for the adoption of the new national forestry and fauna policy and, secondly, the identification of the regulations implementing the Forestry Act as measures requiring prior consultation. The 2013 Alternative Report indicates that even though each sponsoring body has discretionary powers in the process for identifying measures necessitating prior consultation, the consolidated texts on administrative procedures (TUPA) of certain bodies have not identified the measures that require consultation, as is the case in the electricity sector, and do not guarantee consultation at all stages of projects, as is the case in the oil and gas sector, which also does not prescribe specific procedures to ensure the participation of indigenous peoples in the preparation of environmental impact studies. The Committee invites the Government to include information in its next report on the results of the review of national forestry policy and of the prior consultation process relating to the relevant articles of the regulations implementing the Forestry Act. The Committee requests the Government to indicate any measures taken to ensure that the legislation regulating mining and energy activities provides for consultation at all stages of projects and prescribes that the peoples concerned shall be associated with the preparation of environmental impact studies (Articles 7 and 15).

Mining and hydroelectricity. The Committee notes that Act No. 30011 of 26 April 2013, amending Act No. 29325 establishing the National Environmental Evaluation and Inspection System, imposes financial penalties on enterprises where a complaint is proven or non-compliance with environmental regulations is established and gives the Environmental Evaluation and Inspection Agency (OEFA) responsibility for imposing corrective and preventive measures to alleviate and reduce the environmental hazards of operations and facilities established in the context of investment projects. The Government provides detailed information on the action taken in the context of the multi-sectoral commission for the improvement of the social and environmental conditions of the peoples living in the Pastaza, Tigre, Corrientes and Marañón river basins (department of Loreto), including the launch of the plan to identify the environmental impact of past oil and gas production which, in 2013 and 2014, is due to record environmental damage and pollution in the area. The 2013 Alternative Report refers to new cases of environmental pollution and lack of prior consultation regarding the exploration and exploitation on natural resources within indigenous territories, namely: oil and gas exploration and exploitation in the territories of the native community of Canaán de Cachiyacu (Loreto region); licence for gas exploration and exploitation on plot 88 overlapping the Nahua Kugapakori territorial reserve (RTKNN) in the Lower Urubamba area; licences for mining on the lands of the farming community of San Juan de Cañaris (Lambayeque region); and licences for forestry operations on the territories of the native communities of Santa Sofía, Santa Rosa de Quebrada Matador and San Manuel de Nashatauri (San Martín and Loreto regions). The Committee asks the Government to include detailed information in its next report on the measures taken to ensure observance of the Convention, particularly Article 15, in the situations referred to in its previous comments and in the cases described in the 2012 and 2013 Alternative Reports. The Committee requests the Government to provide examples in its next report of the manner in which the application of the new environmental inspection system has helped to protect and preserve the environment of the territories inhabited by the peoples concerned.

Protection of peoples living in isolation. The Committee notes that in June 2013 the “Register of indigenous peoples in situations of isolation or initial contact” and the “Register of indigenous reserves” were established. The 2013 Alternative Report states that despite the prohibition on establishing human settlements or performing economic activities inside the reserves, the ninth supplementary, transitional and final provision of the regulations implementing the Act establishing the right to prior consultation stipulates that the Deputy Ministry for Inter-Cultural Affairs must issue a binding technical opinion on the environmental impact studies relating to the use of natural resources in territories inhabited by the indigenous peoples in situations of isolation or initial contact. The 2013 Alternative Report also recalls that contact for these peoples with the outside world entails the risk of epidemics, displacement and disputes over living space. Moreover, the reclassification of “territorial reserves” as “indigenous reserves” implies a reduction in their current surface area, as in the case of the RTKNN territorial reserve. The Committee invites the Government to provide information in its next report on the impact of adopted measures on protecting and preserving the living conditions of the indigenous peoples in situations of isolation or initial contact.

Education. The Government provides detailed information on the activities of the National Technical Board and the National Commission for Inter-Cultural, Bilingual and Rural Education, which are composed of representatives of the indigenous communities, with the purpose of contributing to the planning and implementation of inter-cultural and bilingual education policy. The Committee notes the existence of draft regulations for the application of the Languages Act (No. 29735), exercising the collective linguistic rights of the indigenous population and implementing a plan for the prior consultation of indigenous peoples with regard to such a project. The Government also provides information on actions for the implementation of the bilingual inter-cultural education policy and rural education policy, including the project to establish a strategic plan for bilingual inter-cultural education and the process for the registration of the corresponding educational institutions. The 2013 Alternative Report indicates that in June 2013 the indigenous Amazonian peoples declared that the education that they receive does not respect cultural diversity or reach the levels prescribed by the Convention. The Committee invites the Government to include statistical information in its next report (number of schools, teachers and pupils) and documentary information on the manner in which activities undertaken in the context of bilingual inter-cultural education meet the specific needs of the indigenous peoples, in accordance with Part VI of the Convention. The Committee requests the Government to provide information on the results of the process of prior consultation regarding the draft regulations for the implementation of the Languages Act.

Health. The Government points out that the National Inter-Cultural Health Centre is drawing up a plan for consultations in relation to the sectoral inter-cultural health policy. The Alternative Report indicates that, in April 2013, a Court of Datem del Marañón province (Loreto region) upheld the amparo (protection of constitutional rights) action brought against the Ministry of Health and the Loreto regional government for violation of the right to health to the detriment of the Candoshi-Shapra indigenous peoples. The Committee asks the Government to indicate in its next report the measures taken to ensure that adequate health services are made available to the peoples concerned. The Committee requests the Government to provide information on progress made on the consultation process relating to the sectoral inter-cultural health policy.

[The Government is asked to reply in detail to the present comments in 2015.]