Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

The Committee notes the observations of the General Confederation of Workers of Peru (CGTP), received in 2018; the observations of the Autonomous Workers’ Confederation of Peru (CATP), received in 2018 and 2019; and the observations of the International Organisation of Employers (IOE), received in 2019. The Committee notes the Government’s reply to these observations. Lastly, the Committee notes the observations of the National Confederation of Private Business’ Institutions (CONFIEP), received on 10 September 2021, and requests the Government to send its comments in this regard.

Article 3 of the Convention. Human rights. 1. Events in Alto Tamaya–Saweto. In its previous comments, the Committee deplored the murders of four indigenous trade union leaders (Edwin Chota Valera, Jorge Ríos Pérez, Leoncio Quinticima Meléndez and Francisco Pinedo) of the Asháninka indigenous community of Alto Tamaya–Saweto after reporting illegal logging in their community, events that were examined in 2016 in the report of the tripartite committee set up in the context of a representation made in 2014 alleging violation of the Convention (GB.327/INS/5/3). The Committee urged the Government to continue taking all necessary measures to determine responsibilities and punish the perpetrators of the murders, and also to investigate the reports of acts of violence and illegal logging in the above-mentioned community.

The Committee notes that the CATP states in its observations that despite the judicial proceedings instituted against the suspected perpetrators of the murders, those with primary responsibility for the crimes are still at liberty and have not been punished, also pointing out that some authorities have contributed to procedural delays in the investigations and that there are other persons who were involved in the murders who have still not been charged. The Committee also notes that, according to the CATP, it was determined in the investigations that the main motive for the crime was illegal logging within the habilitación (advances) system which involves forced labour practices. The Committee notes that the Government attaches to its report copies of the reports of the Public Prosecutor’s Office and the judiciary in relation to the status of the criminal proceedings against the suspected perpetrators of the murders of the indigenous trade union leaders from Alto Tamaya–Saweto which occurred in 2014. It observes that, according to the 2019 report of the High Court of Justice of Ucayali, criminal proceedings had been instituted for aggravated premeditated homicide against five suspected perpetrators of the murders; these proceedings were at an intermediate stage, with the corresponding indictment due to be issued soon. Moreover, the 2019 report of the Public Prosecutor’s Office indicated that not all the perpetrators of the murders had been identified but that the prosecution service was continuing investigations in order to establish the facts. The Committee notes that, in June 2021, the oral hearing took place, in which the Special Transitional Court for Annulment of Ownership within the High Court of Ucayali issued a trial order against five suspected perpetrators of the murders (the oral hearing is available on the official channel of the judiciary). At the hearing, the judge stated that so far no order for pre-trial detention or any other interim measure has been issued against any of the accused. Recalling the seriousness of the acts committed seven years ago and the importance of preventing a climate of impunity which can affect indigenous and tribal peoples, the Committee strongly urges the Government to continue taking all necessary measures to ensure that the competent authorities proceed without delay with completing the investigations under way to enable the prosecution and conviction of the instigators and perpetrators of the murders of the trade union leaders of the Alto Tamaya–Saweto community in 2014. The Committee also requests the Government to provide information on progress made in the investigations relating to the reports of acts of violence in the context of illegal logging in the above-mentioned community.

2. Allegations of criminalization of social protest. The Committee previously emphasized the need to guarantee that indigenous peoples can fully exercise, in freedom and security, the rights established by the Convention and to ensure that no force or coercion is used in violation of their human rights and fundamental freedoms. The Committee observes that the CATP and CGTP refer to the criminalization of social protest and to acts of violence against indigenous defenders, both women and men, some of whom have been prosecuted by the criminal and administrative justice system in the context of socio-environmental protests. In particular, the CATP refers to a climate of violence affecting the indigenous communities of the Amazon region of Ucayali, in the context of their territorial demands. The Committee also notes that CONFIEP: (i) expresses its utmost concern at the threats to which indigenous peoples are subjected in the context of defending their territories and the environment; (ii) highlights the establishment in 2021 of the intersectoral mechanism for the protection of human rights defenders (Supreme Decree No. 004-2021-JUS), which seeks to prevent situations of risk arising as a result of their activities and to ensure their protection and access to justice; and (iii) adds that it hopes that this measure will contribute towards eradicating activities which are having a serious impact on the environment and safety of indigenous peoples.

While welcoming the adoption of the above-mentioned mechanism, the Committee observes that the social partners in the country express concern at the perpetration of acts of violence against the representatives of indigenous peoples who exercise the right to protest. The Committee recalls the importance of governments taking measures to prevent and investigate acts of violence suffered by indigenous peoples and their representatives in the context of peaceful action to defend their rights. The Committee therefore expects that the intersectoral mechanism for the protection of human rights defenders will prove effective in ensuring respect for the life, physical safety and psychological well-being of indigenous leaders, both women and men, and in creating a climate of trust, free of threats, so that they can defend their peoples’ rights, including through their right to protest without having recourse to violence. The Committee requests the Government to provide information on the activities of the intersectoral mechanism in question, and on any other additional measures adopted or envisaged in this regard.

Article 6. Consultation. The Committee notes that, in reply to its request for measures to be taken to strengthen the capacities of officials responsible for implementing consultation processes and to ensure that the peoples concerned can participate fully in those processes, the Government indicates: (1) the number of consultation processes carried out at the national level, including the number of agreements reached; (2) that the Vice-Ministry of Intercultural Affairs, through the Directorate for Prior Consultation, has coordinated training and support activities in the consultation processes; (3) that a total of 837 prior consultation agreements had been processed by 2021 by the Technical Secretariat of the Standing Multisectoral Committee for the Application of the Right to Consultation and 57 per cent of all these agreements had been finalized; (4) that one of the measures one which consultations were held was the draft Framework Act on Climate Change, as a result of which it was agreed to set up an indigenous climate platform as a forum in which indigenous peoples will be able to coordinate, exchange, manage and follow up proposals for action with regard to climate change; and (5) that between 2019 and June 2021 a total of 4,009 public officials and 9,290 members of indigenous peoples received technical assistance from the Directorate for Prior Consultation at the Ministry of Culture, and that 2,746 persons (public officials and members of indigenous peoples) were trained in the right and process of prior consultation by means of 94 workshops, both face-to-face and online.

The Committee notes with interest the ongoing progress in the implementation of consultation processes with indigenous peoples and also training activities on consultation. The Committee encourages the Government to continue its efforts to create the appropriate conditions to enable indigenous peoples to participate fully in consultation processes and affect the final outcome thereof, and to enable agreements to be reached on the proposed measures. The Committee requests the Government to continue providing information on the consultation processes that have been carried out, on the agreements reached and on compliance with them.

Articles 6 and 15. Consultation. Mining projects. With regard to its request for information on established procedures to enable proper identification of indigenous peoples whose interests might be affected by mining concessions and the consultations held with the peoples concerned, the Committee notes the Government’s indication that a total of 15 consultation processes have been carried out in relation to mining projects (13 on resolutions which authorize exploration activities and two on exploitation activities) and that dialogue forums have been set up with indigenous or native peoples in the context of the Standing Multisectoral Committee on Combating Illegal and Informal Mining. The Government also refers to the setting up of the Energy and Mining Sector Executive Committee for the Productive Development of the Country by means of Ministerial Resolution No. 326-2018-EF/10, comprising several ministries and representatives of the private sector, for the purpose of identifying, promoting and proposing actions for the sustainable development of the mining, hydrocarbon and energy sectors. The above-mentioned committee referred to the need to have updated, reliable information on the existence of locations of indigenous or native peoples in the area impacted by mining projects of importance for the economic and productive development of the country. On that basis, the Ministry of Culture carried out the identification of indigenous or native peoples connected with 23 mining projects deemed to have priority status. As a result, six locations of indigenous or native peoples which had not yet been incorporated into the official Database of Indigenous or Native Peoples (BDPI) and 90 locations already incorporated in the BDPI were identified.

The Committee notes the general claim by the CATP that, in the consultations with the indigenous peoples regarding mining activities, no justification was made of the measures concerned, there was no determination of their impact and nor was any specific information on the projects in question provided in the measures, resulting in agreements of a fairly general nature which do not protect the rights of the peoples concerned. In this regard, the Government indicates that the Environmental Assessment and Inspection Agency (OEFA) carries out actions to open channels of communication with indigenous communities inhabiting the area impacted by a project subject to monitoring, promoting their participation in early environmental assessments and environmental monitoring actions. The Committee requests the Government to provide information on any action taken in addition to the tasks performed by the Standing Multisectoral Committee on Combating Illegal and Informal Mining and by the Energy and Mining Sector Executive Committee for the Productive Development of the Country aimed at ensuring that the peoples inhabiting the areas where it is planned to undertake mining exploration or exploitation activities are identified and consulted in order to determine to what extent their interests might be prejudiced. The Committee also requests the Government: (i) to continue providing information on the number of consultations held with representatives of the indigenous peoples concerned with regard to mining exploration or exploitation projects and the results thereof; and (ii) to ensure that the indigenous peoples consulted have the relevant information and are able to understand it fully so that full dialogue is achieved between the parties.

Article 14. Land. National policy on titling. The Committee observes that the CATP and CGTP once again refer to the lack of public policy with regard to land titling, the inadequacy and lack of coordination of institutions responsible for the regularization of the lands of campesino (peasant-farming) and native communities, and the lack of legal protection of these communities with regard to the occupation and dispossession of their traditional lands by third parties. In this regard, the Committee notes the Government’s indication that procedures for the recognition and titling of communities are the responsibility of regional governments, being the Ministry of Agriculture and Irrigation the lead agency for legal and physical regularization and formalization. Moreover, the Government indicates that four indigenous reserves have been officially delimited for indigenous peoples in situations of isolation or initial contact (PIACI) in the regions of Cusco, Madre de Dios, Ucayali and Loreto, with a total area of 3,967,341.56 hectares. However, the Committee once again notes the lack of detailed information on the status of land titling requests submitted by indigenous peoples who are not in a situation of isolation or initial contact. The Committee also notes that Departmental Report No. 002-2018-AMASPPI PPI, prepared by the Ombudsman’s Office and referred to by the Government in its report, indicates that no significant progress has been recorded with regard to the physical and legal regularization of communal land or the recognition and titling of native and campesino communities because of the lack of budgets and staff allocated to regional governments for this task and because of the existence of disputes in areas awaiting recognition. In this regard, the Committee emphasized in its 2018 general observation that the recognition of traditional occupation as the source of ownership and possession rights is the cornerstone on which the land rights system established by the Convention is based. The Committee therefore urges the Government to take the necessary measures to implement the processes of identification, demarcation and regularization of the lands traditionally occupied by the peoples covered by the Convention in the different regions of the country, and once again requests the Government to send detailed information on titling processes which have been concluded or are in progress, disaggregated by regions as far as possible. The Committee also requests the Government to provide information on existing mechanisms for settling any land disputes which arise between indigenous peoples and third parties, indicating, if possible, examples of disputes which have been resolved through these mechanisms.

Titling of Shawi community lands. The Committee once again requests the Government to provide detailed information on the manner in which the Shawi communities have been afforded effective protection of their rights of ownership and possession with respect to the plot referred to in the 2016 tripartite committee report.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2023.]