Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the communication received in March 2017, through which the General Confederation of Workers of Peru (CGTP) communicated a comparative regional report of the Coordination of Indigenous Organizations of the Amazon Basin (COICAI). It also notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), received in November 2015, and the Government’s comments in that respect of February 2017. It further notes that on 4 September 2015 the CGTP communicated the Alternative Report 2015 on compliance with the Convention prepared by seven national indigenous organizations with the support of the Indigenous Peoples Working Group of the National Coordinating Committee for Human Rights.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

The Committee notes the report of the tripartite committee set up to examine the representation made under article 24 of the Constitution of the ILO by the International Trade Union Confederation (ITUC), the Trade Union Confederation of the Americas (TUCA) and the Autonomous Workers’ Confederation of Peru (CATP) alleging non-observance by the Government of Peru of the Convention, which was approved by the Governing Body in June 2016.

Article 3 of the Convention. Human rights and fundamental freedoms. In its previous comments, with reference to the events that occurred in 2009 in the city of Bagua, the Committee emphasized the need to take measures to ensure that no force or coercion is used in violation of the human rights and fundamental freedoms of indigenous peoples. The Committee notes that in the representation examined in June 2016, the tripartite committee examined the information provided by the complainant organizations concerning the high levels of conflictuality and the criminalization of social protest, as well as the information provided by the Government on the various incidents. The tripartite committee deplored the murders and acts of violence reported in the representation and, while noting that investigations had been initiated, requested the Government to provide to the Committee of Experts detailed information on the specific progress made in each of the investigations into the deaths and incidents referred to by the complainant organizations in relation to the indigenous social protest between 2011 and 2014. The tripartite committee also deeply regretted the murder of four leaders of the Alto Tamaya – Saweto indigenous community on 1 September 2014 and observed that such acts require severe measures by the authorities. The Committee also notes that the Alternative Report 2015 criticizes campaigns which endeavour to tie claims and protests to subversive movements and expresses concern at the abuse of force.

In the same way as the tripartite committee, the Committee of Experts deplores the deaths and acts of violence referred to in the representation. The Committee recalls that respect for the collective rights of indigenous peoples recognized in the various parts of the Convention is an essential element in creating a climate of trust between the authorities and indigenous peoples and in guaranteeing cohesion and social peace through inclusion and dialogue. The Committee urges the Government to continue taking the necessary measures to determine responsibilities and punish those guilty of the murders of the four leaders of the Alto Tamaya – Saweto indigenous community. It requests the Government to provide detailed information on the specific progress made in the investigations into the murders and other cases of violence referred to in the representation with a view to determining responsibilities and punishing those found guilty. The Committee also requests the Government to take the necessary measures to ensure that indigenous peoples are able to exercise fully in freedom and security the rights set out in the Convention and to ensure that no form of force or coercion is used in violation of the human rights and fundamental freedoms of indigenous peoples.

Article 6. Consultation. In its previous comments, the Committee considered that the adoption of Act No. 29785 on the right to prior consultation of indigenous and native peoples constituted progress in the establishment of effective consultation mechanisms that take into account the visions of governments and indigenous and tribal peoples concerning the procedures to be followed to give effect to the Convention. In accordance with the Act, the Vice-Ministry for Intercultural Affairs includes in its functions organizing dialogue and articulating and coordinating state policy on the implementation of the right to prior consultation. In accordance with section 9, state bodies are required to identify proposed legislative or administrative measures that are directly related to the collective rights of indigenous and native peoples with a view to holding consultations when it is concluded that there may be a direct effect on their collective rights. Section 3 of the Regulations of the Act provides that the public body responsible for adopting legislative or administrative measures that will be the subject of consultation shall be the initiating institution. The Committee invites the Government to provide information on the consultations held by initiating institutions, and particularly on the consultations held on proposals for legislative or administrative measures which may affect directly the collective rights of indigenous peoples.

The Committee takes due note of the information provided by the Government on the training workshops held on the exercise of the right to consultation and the legal tools to guarantee these rights which were designed and developed with representatives of indigenous organizations. For example, in 2014, a total of 61 training workshops were held in which over 3,634 persons participated (67 per cent of whom were indigenous leaders) in the departments of Loreto, Ucayali and Junín. The Government also indicates that the Vice-Ministry for Intercultural Affairs provided technical assistance in this context to public institutions in relation to the procedures for prior consultation. With reference to the consultation processes held, the Government provides detailed information on the 22 consultation processes organized since the entry into force of Act No. 29785, which were related, among other subjects, to exploration and exploitation contracts (such as the renewal of the oil concession in lot 192), the Regulations of the Act on forestry and forest fauna, the Intercultural Sectoral Health Policy and the National Plan for Bilingual Intercultural Education. Representatives of the seven national indigenous organizations participated in these processes, and agreements were reached in 20 of them between the State and the indigenous peoples involved.

The Committee notes the difficulties referred to in the Alternative Report 2015 respecting effective compliance with the right of consultation related to the lack of knowledge of indigenous matters by the officials responsible for the process, and the limitations of indigenous organizations (inadequacy of financial and logistical resources, lack of technical knowledge in the various areas). The view is expressed in the Alternative Report that the imbalance in the relations between the State and indigenous peoples is resulting in consultation processes becoming merely procedural.

The Committee encourages the Government to continue making every effort to hold meaningful and substantive consultations with indigenous peoples on each occasion that legislative or administrative measures are planned that may affect them directly, and requests the Government to provide updated information on this subject. It also requests the Government to continue taking measures to improve the training provided to indigenous peoples, and to the officials responsible and other actors on the objectives, stages and importance of consultation processes, and to report on any measures intended to establish appropriate mechanisms through which indigenous peoples can participate fully in the consultation processes.

Articles 6, 7 and 15. 1. Consultations prior to undertaking or authorizing mining concessions. The Committee previously requested the Government to provide examples of projects submitted to the Ministry of Energy and Mining which required prior consultation and the participation of the peoples concerned in the benefits deriving from such activities. The Committee notes that, in the context of the representation examined by the tripartite committee in 2016, the complainant organizations considered that mining concessions were granted without holding consultation processes with the peoples concerned and without evaluation of the territory for which the concession was granted. In this connection, the Government indicates that a mining concession is a title which grants the exclusive right of exploration and exploitation of mineral resources in a specific area, but does not authorize the commencement of exploration or exploitation activities. Nor does it produce direct effects on the collective rights of indigenous peoples and therefore does not require the organization of a prior consultation process before the concession is granted. The Government adds that the situations in which it is necessary to hold prior consultations are the granting of beneficiary concessions, the authorization of the commencement of exploration in mining concessions and the authorization of the commencement of exploitation in metal and non-metal mining concessions. In this regard, the Committee notes the Government’s indications in its report that 95 applications were made to the General Directorate of Mining between 2014 and 2015 for authorization to commence exploration activities, seven applications for beneficial concessions and 26 applications for authorization to commence exploitation. The administrative authority noted that the rural communities encountered did not meet the criteria for identification as indigenous peoples, for which reason prior consultations were not held. The Committee considers that it is important to identify the indigenous communities on whose lands mining concessions are sought and to involve them as early as possible in decision-making processes relating to the granting of mining concessions. The Committee requests the Government to indicate how the established procedures allow proper identification of indigenous peoples whose interests might be affected by the mining concessions. The Committee also requests the Government to provide information on the consultations held with the representatives of the indigenous peoples concerned prior to undertaking or authorizing any programmes of prospection or exploitation of mining resources, with a view to determining whether and to what extent the interests of these peoples would be prejudiced. Furthermore, the Committee requests the Government to continue providing information on the number of applications made to the General Directorate of Mining for authorization to commence exploration and/or exploitation, the number of instances in which consultations were held with representatives of indigenous peoples, as well as information on any disputes arising from these processes.

2. Regulation of mining and hydroelectricity. In its previous comments, the Committee noted that the Environmental Evaluation and Inspection Agency (OEFA) is responsible for imposing corrective and preventive measures to alleviate and reduce the environmental hazards of operations and facilities established in the context of investment projects. It requested the Government to indicate the manner in which this new environmental inspection system has contributed to protecting and preserving the environment of the territories inhabited by the peoples concerned.

In its report, the Government refers to the measures adopted to reinforce participation by citizens in environmental monitoring under the responsibility of the OEFA, and the supervisory and inspection functions of the OEFA. The Committee notes that the Government has not provided specific information on the activities undertaken by the OEFA. Nor has it provided information on cases of environmental contamination and of lack of prior consultation respecting exploitation and exploration activities for natural resources on indigenous lands referred to in the Alternative Report 2013, on which the Committee requested information. The Committee notes in this regard that both the Alternative Report 2015 and the 2017 observations of the CGTP indicate that the adoption of “Environmental Packages” consisting of a series of legislative provisions introducing greater flexibility into environmental standards that protect the rights of indigenous peoples and the environment. The communications indicate that a series of decrees and laws have been adopted to facilitate the access to lands of public and private investment projects which would affect the rights of indigenous peoples. The Committee requests the Government to provide its comments on this subject and to specify the manner in which the cooperation of the peoples concerned is secured in the preparation of environmental impact studies (Articles 7 and 15).

3. Legislation respecting consultation, participation and cooperation. The Committee noted previously that taxation and budgetary rules are not subject to consultation (section 5(k) of the Regulations of the Act on the Right to prior consultation). It also noted that the Regulations do not require consultation on any exceptional or temporary decisions by the State to address emergency situations arising out of natural or technological disasters (section 5(l) of the Regulations) or administrative measures considered to be supplementary (12th supplementary, transitional and final provision of the Regulations). The current legislation has also left pending the adoption of implementing legislation respecting machinery for participation and for participation in benefits (fifth and tenth supplementary, transitional and final provisions of the Regulations), which are required by the Convention. In this regard, the Committee notes the request made in the Alternative Report 2015 for the derogation of the exceptions envisaged in the Regulations.

The Committee requests the Government, in consultation with indigenous peoples and other stakeholders concerned, to adopt the necessary legislative measures and to make the necessary revisions to the legislation in force, taking into account that they do not give full effect to the provisions respecting 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 is raising other matters in a request addressed directly to the Government.