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

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

The Committee notes the report received from the Government in September 2013 containing detailed information and illustrative additional documentation in reply to the observation made in 2012. The Committee notes the communication received in July 2013 from the General Confederation of Workers of Peru (CGTP) including the 2013 Alternative Report, prepared by seven national and regional indigenous organizations and the Indigenous Peoples Working Group of the National Coordinating Committee for Human Rights. In October 2013 the Government sent its comments in this respect and stated that the alternative report provided a space for reflection and discussion on the rights of indigenous peoples, considering that the institutions presenting the report agreed with the Ministry of Culture on the need to improve procedures for ensuring protection of the rights of indigenous peoples. The Committee invites the Government, when preparing its next report, to continue to take account of the views expressed by the social partners and indigenous organizations in order to give further effect to the Convention (Parts VII and VIII of the report form).

Article 3 of the Convention. Human rights and fundamental freedoms. Investigation of events in the province of Bagua (Amazonas). The Government states that the case file relating to the events that occurred in the province of Bagua was referred to the National Criminal Court on 5 October 2012 and that it is providing legal defence for 29 persons involved in the case by means of public defenders for indigenous affairs. The 2013 Alternative Report refers to cases of repressive action against indigenous persons and proceedings against their defenders. The Committee invites the Government to indicate the measures taken to ensure that no force or coercion is used in violation of the human rights and fundamental freedoms of indigenous peoples and to avoid criminalizing events involving indigenous peoples. The Government is also requested to provide information on any ongoing judicial proceedings relating to the events in Bagua.

Article 6. Consultation. The Committee notes the ordinances adopted by the regional governments of Amazonas and Loreto concerning the implementation of the right to prior consultation. In its report the Government cites five cases where the need to implement the right to prior consultation was identified. In July and October 2013, the representatives of the Maijuna and Kichwa peoples expressed their agreement with the proposal for the creation of the “Maijuna-Kichwa Regional Conservation Area”. PERUPETRO SA, as the sponsoring body, is at the stage of planning prior consultations with indigenous peoples with regard to hydrocarbon plot No. 192 (formerly 1-AB) (department of Loreto). Moreover, the Ministry of Education has prepared draft regulations for the Languages Act and a plan for implementing prior consultation. The Committee invites the Government to provide information in its next report on the consultations held by sponsoring bodies and, in particular, on consultations relating to legislative and administrative measures which may directly affect the collective rights of indigenous peoples.

Articles 6 and 15. Consultation. Natural resources. Participation in benefits. The Committee notes that, according to the Ministry of Energy and Mining, the situations which require prior consultation are the granting of operating licences and the authorization to commence mining exploration and exploitation activities. The Directorate-General for Mining received 86 applications for exploration permits and the existence of indigenous peoples was identified in only a small number of them. The Government also points out that the Ministry of Energy and Mining did not receive any applications for operating licences or authorization to commence mining exploitation activities in which the existence of indigenous peoples had been identified. The Committee notes that the 2013 Alternative Report indicates that regional and local governments whose jurisdiction oversees the exploitation of natural resources that generate various royalties and levies are supposed to allocate funds to farming and native communities located in the areas where natural petroleum resources are being exploited. However, factors such as criteria for the identification of indigenous peoples and low levels of implementation of the budget granted to regional and local governments on the basis of various royalties and levies reduce the impact of these measures on the lives of the indigenous peoples. The Committee refers to its direct request and invites the Government to include examples in its next report of projects submitted to the Ministry of Energy and Mining in which the obligation of prior consultation and participation of the peoples concerned in the benefits deriving from such activities has been fulfilled. The Committee invites the Government to indicate the measures adopted at both national and regional levels to ensure that the funds earmarked for indigenous communities have a positive impact on the lives of these peoples.

Legislation relating to consultation, participation and cooperation. The Committee previously observed that taxation and budgetary rules will not be subject to consultation (section 5(k) of the regulations implementing the Act establishing the right to prior consultation). Also exempt from consultation are any exceptional or temporary state decisions taken to address emergency situations arising from natural or technological disasters (section 5(l) of the regulations) and administrative measures deemed to be supplementary (12th supplementary, transitional and final provision of the regulations). Furthermore, the current legislation does not envisage further legal provisions relating to the machinery for participation and for participation in benefits (fifth and tenth supplementary, transitional and final provisions of the regulations) required by the Convention. The Government reiterates that, since the Convention has constitutional status, national standards must always be interpreted in accordance with the provisions of the Convention. Bearing in mind that full effect has not yet been given to the provisions relating to the participation and cooperation of indigenous peoples set out in Article 6(1)(b) and (c), Article 7 and Part II (Lands) of the Convention, the Committee again invites the Government to ensure, in consultation with the indigenous peoples and other parties concerned, that appropriate legislative measures are adopted and that the provisions of the current legislation are revised accordingly.

In a direct request, the Committee is inviting the Government to continue to provide information on the identification of indigenous peoples, the protection of peoples living in isolation and progress on health and education for indigenous peoples. The Committee also refers to matters still pending in relation to prior consultation and participation in activities related to natural resources and the titling and registration of lands.

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