Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

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

A Government representative, Minister of Labour and Employment Promotion, referring to the observations contained in the 2008 report of the Committee of Experts on the application of Convention No. 169, beginning with Article 1, said that Peru had ratified the Convention on the assumption that there was compatibility between its provisions and the concept or legal definition of “peasant-farmer or native community”, which was the term used in Peru’s Constitution and legislation. Nevertheless, the Congress of the Republic had prepared a draft Act entitled “Framework Act on indigenous or original peoples of Peru” which included the peasant farmer and native communities in question, as well as isolated indigenous groups, defining the term “indigenous or original peoples” with an exact transcript of Article 1 of Convention No. 169.

With regard to the second observation of the Committee of Experts, regarding Articles 2 and 33 of the Convention, he recalled that the Government had established a range of institutions to administer programmes affecting the people concerned. He stated that, in 2005, Act No. 28495 had created the National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) as a participatory body, with its own administration and budget, mandated to propose policies and programmes for indigenous peoples’ development. As it had only recently been established and its competences would require a certain amount of consolidation, the speaker indicated that the Government would request technical support from the ILO subregional office for the Andean Countries for institutional strengthening of INDEPA.

He underlined that Peru was making progress towards decentralization and transferring powers to regional and local levels of government through policies of dialogue, promotion and capacity-building for public and private bodies to benefit Andean, Amazonian, Afro-Peruvian and Asiatic Peruvian peoples, as evidenced by the Organic Municipalities Act No. 27972 of May 2003, that established coordinating councils, whose members included representatives of native people located in the relevant jurisdictions, and created participatory control mechanisms. In that regard, he also noted that various acts had provided for affirmative action concerning the political rights of indigenous peoples, stipulating, for example, that at least 15 per cent of candidates on electoral lists for municipal and regional assemblies should be drawn from indigenous peoples.

In order to resolve complaints from indigenous Amazonian populations and create a space for dialogue with their representatives – which were the subject of the third observation of the Committee of Experts concerning Articles 2, 6, 15 and 33 of the Convention – various legislative decrees specifically mentioned in the Committee’s report had been repealed and a Multisectoral Committee had been established on 20 April 2009, to deal with matters relating to the proposals made by the Inter-Ethnic Association for the Development of the Peruvian Rainforest (AIDESEP) regarding repeal of various legislative decrees, a measure which had already received preliminary approval in Congress.

In addition, local coordinating councils had been created and other consultation mechanisms were in place to encourage public participation and include peasant-farmer or native communities in processes affecting the environment, in accordance with the consultation procedures set out in Article 6 of Convention No. 169. However, despite new legislation, the speaker said that it was necessary to establish standards to apply across the country and in all sectors in order to guarantee the right to participation and consultation at all levels of government, standards which he hoped Congress would approve shortly. In that regard, attention should be drawn to the plan for citizens’ participation, intended to involve communities on an organized basis in public monitoring and vigilance programmes with regard to the social and environmental impacts of implementing projects affecting the exploitation of natural resources when they threatened the members, institutions, property, work, cultures and environment of the peoples concerned. In this respect, he cited the cases of the Río Blanco project in the Piura region and the exploration of the Condohuain hills to exploit their mineral deposits.

Lastly, the Government representative referred to the events of the previous weekend in the Bagua area of the Cajamarca region. Although the events and those responsible for them were being investigated, he stated that, in the Government’s view, the protests and demonstrations had resulted from the action of uncontrolled groups that, twisting the complaints of native communities, had attempted to disrupt oil pumping and endanger gas piping facilities, which would have had serious consequences for millions of Peruvians. However, he concluded by saying that he regretted the outcome and that the Government remained open to dialogue.

The Employer members thanked the Minister of Labour and Employment Promotion of Peru for personally attending the Committee’s session and for the information provided. They noted that it was the twentieth anniversary of the adoption of Convention No. 169, but that it was only the fifth time that the application of this Convention had been discussed in this Committee. The Employer members highlighted the importance of this discussion for Peru and for the other 19 countries that had ratified the Convention, as well as for the region generally. It was the first examination of the application of Convention No. 169 by Peru in this Committee, though the Committee of Experts had already made eight observations since the ratification of this Convention by Peru in 1994. The Committee of Experts continued to regret the Government’s failure to provide the information requested. In addition, the Government had not responded to the communications submitted by the workers’ organizations. The Employer members noted the problems the Government had encountered. They understood that a 60-day state of emergency had been declared in May 2009 in areas of the Amazon and that there had been recently a confrontation in Bagua. They stated that there appeared to be a very sensitive situation on the ground, but highlighted that the purpose of the Committee was to review the application of the Convention with reference to the Committee of Experts’ report.

The Employer members acknowledged that there existed practical difficulties in the application of the Convention in Peru. They noted that the Government’s obligation, among others, to establish appropriate and effective mechanisms for the consultation and participation of indigenous and tribal peoples regarding matters affecting them, was a cornerstone of Convention No. 169. The Convention provided that consultation and participation of indigenous and tribal peoples was an essential element in ensuring equity and guaranteeing social peace through inclusion and social dialogue. However, even if there was some degree of general participation in Peru and ad hoc consultations on certain measures, the Committee of Experts had considered it insufficient to meet the Convention’s requirements. The Employer members noted that there remained concern and confusion about the legislative criteria identifying the Peruvian peoples covered by the Convention, and that without such criteria the difficulties in its application in practice would persist. The Committee of Experts had requested the Government to clearly define the coverage, in consultation with the representative institutions of the indigenous peoples, and to ensure that all peoples referred to in Article 1 of the Convention were covered. However, the Employer members considered that, in terms of the Convention, the coverage was open to interpretation, since neither “indigenous” nor “tribal” peoples were defined in the instrument. In this regard, they encouraged the Government to consider the definitions provided in the ILO thesaurus when responding to the Committee of Experts. They also highlighted that, without resolving the problems of coverage, there would continue to be problems of application of Articles 2 and 33 of the Convention. The Government should clearly address why some peoples remained not covered and provide the rationale so that this information could be considered by the Committee of Experts.

The Employer members further noted the problems of application of Articles 6 and 17 (consultation and legislation). Here again, they highlighted the obvious linkage with Article 1, because the Committee of Experts had urged the Government to take steps, with the participation of the indigenous peoples, to establish appropriate consultation and participation mechanisms and to consult the indigenous peoples before adopting measures. Regarding the problems of application of Articles 2, 6, 7, 15 and 33 of the Convention, the Committee of Experts had referred to numerous serious situations of conflict, to which the Government had not responded. The Employer members were not in a position to examine the legislative information provided by the Government to this Committee, but encouraged the Government to provide the information to the Committee of Experts on an annual basis and to consider a plan of action to address the application problems with clear reference to what was happening on the ground and to identify urgent situations connected with the exploitation of natural resources, which could endanger the persons, institutions, property, work, culture and environment of the peoples concerned. The Employer members considered that this was a serious case of non-reporting and it also appeared that the Convention had not been fully implemented. They wanted the Government to take immediate positive steps to provide the Committee of Experts with the information they were seeking, so that a proper assessment of the issues could take place.

The Worker members noted that Peru had ratified Convention No. 169 in 1994. The Committee of Experts had commented on the application of this Convention in 2006 and 2008, but the Government had never been called before the Conference Committee on this matter.

They recalled the particular context of this discussion. Following a violent conflict in the northern part of the country, Bagua, in connection with the suppression of an action led for a few days by 30,000 people, which had caused 33 deaths on 5 June 2009, marches in solidarity with the peoples of Peru had taken place in many countries in support of indigenous movements. In addition, the Government’s action had been firmly condemned by the Inter-American Commission on Human Rights and the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous and Tribal Peoples who had called on the Government to avoid in the future any forms of violence and to apply or adopt measures to protect the rights and fundamental freedoms of the indigenous and tribal peoples. The Worker members recalled that the Committee of Experts had already highlighted in 2008, various situations of grave conflicts attributable to an escalation of the exploitation of natural resources in the territories traditionally inhabited by indigenous peoples.

They underlined the legislative problems arising from this case. As other Andean countries, Peru had a population in which Indian communities remained important. These communities, however, were isolated from power and were not consulted when rights, which concerned them were at issue. In addition, even though Peru had formally recognized in its Constitution its multi-ethnic and multi-cultural character, there was a real gap in action between the legislature and the executive. Four decrees, among which was Decree No. 1090, derogated from the laws providing for restrictions on social order at the mining of raw materials which had prompted the Inter-American Commission on Human Rights to recall the role of the judiciary in the settlement of disputes and compensation of damages caused to the indigenous and tribal peoples. Legislative Decree No. 1090 of 28 June 2008, known as the Forestry Law, had modified the Forestry Law of 2000 in view of adapting it to the Free Trade Agreement signed with the United States. This decree had been suspended recently by the Congress of Peru for 90 days. The conclusions of the Conference Committee would therefore be of high importance.

The Worker members then turned to the detailed analysis of the situation of the indigenous peoples of Peru undertaken in the report of the Committee of Experts. One of great difficulties, the source of legal insecurity and of abuse, was the question of the definition in the Peruvian legislation of the peoples to whom the Convention had to apply. The legal notion of “indigenous peoples” was not defined in the Constitution and several terms were utilized to refer to indigenous peoples, thus creating a certain and detrimental ambiguity. The Committee of Experts had several times asked the Government, in vain, to establish, in consultation with the representative organizations of indigenous peoples, unified criteria for the peoples who might be covered by the Convention.

As part of the application of both Articles 2 and 33 of the Convention, the Government had to establish institutions or other mechanisms, provided with necessary means to accomplish their functions, in order to administer programmes involving the peoples concerned. The Worker members stated that the creation in 2005 of the INDEPA as a participatory organization with administrative and budgetary autonomy granted had not seemed to have generated the desired guarantees. The diversity in the representation within the organization prompted the imposition of decisions of the State and the INDEPA had not had real power. Therefore, the Worker members stressed the request of the Committee of Experts for the Government to create, with the participation of the indigenous peoples, truly effective institutions.

To conclude, the Worker members regretted that the Government had made very few efforts to implement the Convention and to resolve, through consultation with the peoples concerned, the numerous situations of grave conflicts, attributable to an escalation of the exploitation of natural resources in the territories traditionally inhabited by indigenous peoples.

The Government member of Colombia thanked the Minister of Labour and Employment Promotion of Peru for the information provided to the Committee. He stated that the Government of Colombia recognized the Government’s will for dialogue and encouraged the social actors to reinforce such dialogue and to use it as an efficient means to achieve a better understanding and to reach agreements. Finally, the speaker invited the ILO to consider favourably the Government’s request for technical assistance.

The Worker member of Peru stated that the non-observance of the Convention by the Government had serious consequences for the indigenous peoples of her country. The current situation offered a disheartening image of violence. On Friday 5 June, the police had resorted to violent action against protests carried out for two months by the communities located in the Bagua locality, Amazonas Department. The protests of the indigenous communities were aimed at demanding the repeal of legislative decrees which had been issued by the Government without previous consultation and stripped the communities of their legitimate rights to water and land, laws which flagrantly violated Convention No. 169 ratified by Peru. The armed intervention to resolve the indigenous strike had led to the death of at least 30 indigenous persons and 23 members of the police force.

Over 49 to 55 million hectares of the Amazon had been subjected to concessions. Thus, 72 per cent of the territory had been given away by the Government for the exploration and exploitation of hydrocarbon, contrary to Brazil which had conceded only 13 per cent, or Ecuador which had given 11 per cent. In fact, no account had been taken of the firm conviction of the indigenous peoples of Peru who underlined the need for an integrated development. The deforestation of huge expansions of woodland, the contamination of the rivers with lead and other heavy metals, produced through irresponsible mining and oil extraction, were consequences which affected not only Peru, but also harmed entire nations and humanity as a whole. For example, only between 2006 and 2009, 48 oil spills had been caused between the sites 8 and 1AB of Pluspetrol, contaminating the Tigres and Corrientes rivers, harming 34 indigenous communities. According to the reports of the Ministry of Health, 98 per cent of girls and boys in these communities surpassed the limits of toxic metals in their blood. While the Government was called upon to give explanations for the non-observance of Convention No. 169, in Peru a national day of combat was taking place in order to protest against the events which had taken place and to demand from the Government the guarantee of all the rights of the indigenous communities.

A solidarity front had been created, composed of indigenous trade union and community organizations, in order to demand the respect of the 1,400 indigenous communities of the Peruvian Amazon and its 65 ethnic groups. The Committee of Experts had on eight occasions issued reports relative to Convention No. 169 and had exhorted the Government to bring law and practice into line with the obligations flowing from this Convention. The CGTP, indigenous, rural and human rights organizations had presented to that Committee additional comments in 2008. Nevertheless, the Government had not complied with any of these observations. The violation of the right to prior consultation had led to an expression of concern by the Committee of Experts in their latest report. Ten years after the first issuing of various reports by the ILO on the issue of prior consultation, to the extent that it affected indigenous peoples, questions relative to the non-compliance with this requirement continued to be raised. The Convention contained a series of rights which in their totality guaranteed the life and development of the indigenous communities. One of these rights was the prior consultation with respect to decisions which affected them. It was a fundamental right of major historical and political significance. Since its recognition, governments were obliged to respect the right of the indigenous peoples to determine their type and pace of cultural, political, social and economic development.

The social and political crisis which was being currently experienced in the country was a major concern. The previous day, the United Nations Special Rapporteur on Indigenous Peoples had appealed to the Government in order to adopt all necessary additional measures to protect the human rights and fundamental freedoms of those affected. The Government in its public interventions ridiculed the indigenous peoples’ struggle, the defence of the indigenous territories and the sustainable exploitation of resources, thus ignoring the global debate on the measures undertaken to ensure that future generations could live on the planet. All countries in the framework of the United Nations considered that this was a fundamental issue. Among the most important measures adopted by the United Nations General Assembly was the designation of the Special Rapporteur on the situation of human rights and fundamental liberties of the indigenous peoples. Moreover, the Permanent Forum on Indigenous Questions had been established. Later on, the Declaration on the Rights of Indigenous Peoples had been adopted, with the active support of Peru to the adoption of this instrument.

Despite the statements of the Government at the international level on the adoption of these mechanisms and the support given to them, its policies defended and promoted the enrichment of the few at the expense of the rights of the ancestral settlers and its activities were developed without caring about the harmful consequences to the environment. The workers of Peru demanded from the Government to maintain genuine social dialogue aimed at solutions to overcome this profound crisis. They rejected the accusations that the President had proffered against the indigenous peoples, trade unions and popular leaders, treating them as terrorists who were opposed to the country’s progress. They were convinced that the fundamental postulate of the ILO Constitution, to which the Peruvian State had also been committed, was irreplaceable and indispensable: universal and lasting peace could only be based on social justice.

In view of the particularly grave situation of the indigenous peoples, she requested that a high-level mission be sent as quickly as possible to evaluate the serious situation of non-observance of Convention No. 169 and to urge the Government to protect the life of the members of the indigenous communities; guarantee the full exercise of the rights of indigenous peoples; repeal the controversial legislative decrees; lift the state of emergency and the curfew in the Amazon forest; and apply urgent measures to safeguard the institutions, persons, goods, culture, work and environment of the indigenous peoples. Finally, it was necessary to reinforce the capacity of the ILO Office in Lima in order to meet the needs of follow-up and technical support of the social partners for the application of Convention No. 169.

An observer representing the World Federation of Trade Unions (WFTU), highly valued the concern of the Committee of Experts regarding the Government’s failure to comply with Convention No. 169 and stated that the Committee of Experts had conducted its monitoring with great professionalism. The issues faced by indigenous populations were not new to Peruvian people; based on the information communicated by the President of the General Confederation of Workers of Peru (CGTP), it could be concluded that the Government had systematically contravened Convention No. 169. He referred to a crime of lese-humanity against indigenous peoples in the Amazonia, in the north of Peru, which he said should be viewed in the proper political context; it had not been circumstantial, but a result of the neoliberal policies that the current Government continued to apply, regardless of the devastating consequences for Peru and other Latin American countries.

One objective of those national policies, besides destroying the trade union movement, had been the privatization of strategic enterprises and natural resources in order to hand them over to transnational companies. Within the country, more than 90 per cent of public enterprises had been sold off between 1990 and 2000. The Amazonia, full of natural riches, was considered to be one of the planet’s lungs, but those transnational companies, far from protecting the region, polluted it and exploited its riches – oil, timber and biodiversity – on a large scale, and such exploitation needed government complicity. Convention No. 169 provided salvation from the outrage and abuse against native communities in the Amazonia; it also protected the environment and the life of those communities, as there seemed to be no limit to the voracity of the transnational companies and the complicity of neoliberal governments.

The speaker said that the Government had no intention of complying with Convention No. 169, despite repeated calls to do so by the Committee of Experts, and had made use of the “delegated authority” it had by way of parliamentary majority, headed by the ruling party and its allies. This authority was used in order to pass a package of legislative decrees, including some related to the sale of land in the Amazonia region; however, the indigenous communities living in that region responded with complaints to national and international authorities. The CGTP took on the battle. Such legislative decrees were unconstitutional and represented a violation of Convention No. 169, as no consultation had been held with the affected Amazonian communities, who demanded the immediate repeal of those decrees. That repeal would have allowed the initiation of dialogue within the framework of the consultation provided for in the Convention, but, in a display of authoritarianism, the Government refused the repeal. Prior to that intransigence, the indigenous communities that were affected had begun demonstrations and, after receiving no response, declared a general strike in the region of Bagua-Jaen. After 55 days, the Government, rather than withdrawing the decrees, resorted to armed violence, by means of heavily armed repression forces; helicopters were employed using machine guns against the people, leading to the killings that had recently shocked both the Peruvian people and the international community. Those responsible were the Executive Branch and the Parliament, both of which, if they had employed the political will to do so, could have resolved the issue and prevented the deaths of dozens of indigenous persons and police officers. These killings were not the first of the current Government; hundreds of political prisoners had been killed and many peasants murdered when it had first taken office between 1985 and 1990. In that regard, the speaker indicated that the report of the Commission on Truth and Reconciliation should be read. He regretted that the Government, in taking office for a second time, had employed the same methods, to the extent that it had criminalized the trade union and social demonstrators, and used firearms against the protesters. During the three years that the current Government had been in office, there had been more than 27 deaths of workers and peasants due to action by repressive armed forces.

He requested the ILO to send a high-level mission to Peru in order to facilitate: ending immediately the repression of indigenous communities; repealing the legislative decrees in question; initiating dialogue with the affected communities within the framework of the consultation provided for in the Convention; ending immediately the state of emergency and suspending the Constitutional guarantees decreed by the Government; and trying and sentencing as many of the perpetrators of the killings as possible. Crimes of lese-humanity could neither be forgotten nor forgiven.

Following the request for two points of order, the Chairperson reminded the Committee that, in the interest of the discussion, it should respect the parliamentary decorum that had governed the Committee since 1926. He urged speakers to keep to the observation by the Committee of Experts that was the subject of the discussion.

The Employer member of Peru said that the timely questions on the observations made by the Committee of Experts in relation to Convention No. 169, which was ratified by Legislative Resolution No. 26,253 of 2 February 1994, had formed the subject of a comment by the spokesperson of the Employers’ group, but, given that recent issues not referred to in the relevant footnote had also been covered, it was pertinent to state the following: the legal order of a country was founded on two indispensable pillars. The first was the “rule of law”; nobody could be above the law. The second was the “division of powers”. Each state authority had its own powers, functions and competences. ILO standards formed part of Peruvian law, under article 55 of the Constitution, and, as such, should be observed. The fact that, for reasons of urgency, it had not proved possible to observe or comply with a particular principle in no way justified criminal actions, given that appropriate channels existed to be used in such circumstances.

Legislative Decree No. 1090, which consolidated procedures for peasant farmer and indigenous communities in the mountains and jungle and those applicable to coastal communities in order to improve agricultural production and competitiveness, had been issued as a result of the “delegated authority” of the Executive Branch by Congress through Act No. 29157, for the purpose of legislating on various matters relating to the application of the United States-Peru Trade Promotion Agreement. As this Act had been challenged by Supreme Decree No. 031–2009 PCM of 20 May 2009, a multisectoral committee had been established to deal with issues related to Amazonian peoples on a permanent basis. It had been agreed to analyse the content of the legislative decree point by point. Despite this agreement, the leaders of indigenous communities later changed their position from revising the act to asking for its immediate repeal, giving rise to acts of violent confrontation and thereby departing from the legal channels provided for in the law, given that an act could only be repealed or amended by another act.

In his capacity as representative of the National Confederation of Private Business Associations (CONFIEP), as well as the National Society of Industries and the Chamber of Commerce of Lima, the speaker read out a statement by Peruvian entrepreneurs energetically condemning the acts of violence that had occurred in recent days and expressing condolences for the losses of police members and of civil population. They supported the Government for the measures it had taken to re-establish the principle of authority and public safety, with strict respect for rights and, in particular, the national police and armed forces, which had acted in full exercise of the authority vested in them by the Constitution.

They called upon the public not to let itself be manipulated by groups seeking to create chaos and urged the population to stay calm, to report acts of violence and respect democracy, institutions and the law. A call was made to regional and local authorities, together with entrepreneurs in all regions of the country to work together in order to find mechanisms for cooperation and dialogue that would better respond to public aspirations.

Lastly, the speaker reiterated the commitment of employers to sustainable development in Peru. Work would continue on a national agenda that, setting aside individual and short-term interests, would build a prosperous country with its own identity and social peace.

The Government member of Denmark, also speaking on behalf of Norway, recalled that the Government was a party to ILO Convention No. 169 and supported the United Nations Declaration on the Rights of Indigenous Peoples, which called for the full respect of indigenous peoples’ rights, the rights related to their traditional lands, territories and resources and to their free, prior and informed consent. With reference to the violent events that occurred in Bagua starting on 5 June 2009, she expressed deep concern and support for the statements issued on 5 June 2009 by the Chairperson of the United Nations Permanent Forum on Indigenous Issues and of the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples on 10 June 2009. She stressed that it was important that all parties abstained from violence and conveyed her deepest condolences to all victims and their families.

According to the information received, the mobilization of indigenous peoples in the Amazon region was in response to a set of legislative decrees that facilitated concessions for extraction industries in the area. These decrees were enacted without adequate consultation and respect for the right of indigenous peoples to free, prior and informed consent. Due to the severity of the situation, she called upon the Government to establish a comprehensive dialogue, through appropriate mechanisms, between the Government and indigenous peoples’ organizations in accordance with Articles 2, 6, 15, 17 and 33 of Convention No. 169, and the UN Declaration and to undertake an independent and impartial investigation of the incidents in Bagua with the participation of the Ombudsman and international agencies.

An observer representing the Public Services International (PSI), said that, within the framework of the signing of the Free Trade Agreement, which Peru had concluded with the Government of the United States, the Congress of the Republic had in December 2007 delegated the authority to legislate on various matters related to the implementation of the United States–Peru Trade Promotion Agreement and on measures to improve economic competitiveness. The Government was legislating through legislative and supreme decrees that were in violation of not only the Political Constitution of the State of Peru but also of ILO Convention No. 169. In July 2007, the Government had adopted supreme decrees criminalizing peaceful movements, freedom of expression, freedom of association and basic human rights. At the same time, it had authorized the national police and armed forces to shoot and kill in the alleged fulfilment of their duties to maintain order. It should be pointed out that these supreme decrees were not authorized by the Congress of the Republic and that, as a result of their application, 13 leaders were being tried for international terrorism. In June 2008, the Government had adopted 103 legislative decrees. Two of these authoritarian laws amended the current regime for legal proceedings, essentially weakening the basic principles of the administration of justice such as the rule of law and the right to defence; but the most serious thing, and that which had led to social upheaval and the killing of indigenous people, was the infringement of ILO Convention No. 169, because the recognition of indigenous peoples as subjects in law who should perpetuate and reproduce their culture within their respective territories, without exclusion, discrimination or interference, had been violated; the right of the indigenous peoples to live freely on their lands and territories maintaining their collectively held property over these territories for their future generations and enjoying special protection so that their living space was not lost or degraded and so that they could use their resources, had been violated.

The speaker emphasized the violation of the right to consultation and participation in the adoption of the law and the removal of the indigenous participation in the Executive Council of INDEPA which had become exclusively a state institution and not one of concertation with the indigenous peoples as provided for in its founding act. She also indicated that the context behind these authoritative legal texts was the privatization of the forests destined to production and that these forests, just like the Andean and peasant communities, were located in indigenous territories.

She stated that the Government had argued that these legal texts were aimed at improving certain aspects related to the implementation of the Trade Promotion Agreement with the United States. Such an argument had been refuted by the spokesperson of the Environmental Investigation Agency, Andrea Jonson, who had expressed his concern with regard to both the content and the process which had led to the approval of the new law, the lack of consultations with the indigenous peoples and the lack of transparency on the part of the Government which was unacceptable in a country which considered itself to be a democracy. The party which endangered the Free Trade Agreement was the Government itself and not the indigenous peoples or the citizens who exercised the right to protest.

The speaker gave a series of data concerning the indigenous communities. According to the latest census of the indigenous and Amazonian communities, 1,786 indigenous communities existed, of which 1,183 had property titles and 603 had been registered in public registries; 65 ethnic groups existed of which 45 were located in the Peruvian forest; more than 300 languages existed. Sixty per cent of the territory was in the Amazon, 13 languages or dialects and 14 peoples or segments of peoples existed; these were isolated and concentrated in the border zone with Brazil. Sixty-six million hectares were tropical forest. International organizations recognized the special tie that the indigenous peoples maintained with their territory, culture and life. These indigenous communities occupied their territories since before the creation of the Peruvian State itself; despite this, the current policy of the Government tended to ignore the indigenous peoples, raised repeatedly and publicly questions concerning their existence, doubted the validity of their common territories and promoted the sale of these lands, indicating that the only possibility for development was that these lands be managed by large companies. As a result, more than 70 per cent of the Amazon was covered by oil sites and mining concessions, concentrated in the Andean region of the country, in particular, in the regions where a large number of rural communities existed.

The speaker then presented the chronology of the attacks against peasants, the indigenous peoples and environmentalists. She referred to the confrontation between the indigenous peoples and the army in which two protesters died in September 2007. She indicated that in a referendum carried out in the districts of Ayabaca and Huancab 90 per cent of the 31,000 voters had rejected the mining project Rio Blanco which the China Majaz company wanted to implement; contrary to the principle of free determination of the peoples enshrined in Convention No. 169, the Government had tried to impose the project and in order to achieve this, it had accused as terrorists 28 Peruvians including municipal officials, environmentalists and NGOs.

In March 2008, when 97 per cent of those voting also rejected in a referendum carried out in the region of Loreto Iquitos the privatization policy of the Government, they were attacked by police forces and two indigenous persons died while 52 others had been arrested and were still in prison.

The speaker considered nevertheless, that the worst was the presence of the paramilitary group COMANDO CANELA, which infiltrated peaceful movements and promoted violence. This group was composed by a large number of police assigned to the intelligence according to Executive Decision No. 2718–2008. Three peasants had died as a result of its action during the agrarian strike in Barranca and Ayacucho on 18 and 19 February 2008.

Finally, the speaker requested the dispatch of a high-level ILO mission to Peru considering that this case touched upon humanitarian questions since the indigenous persons, after being wounded and left without defence, were being transported to the army barracks in order to prosecute them under criminal charges of terrorism and were unable to assume the costs necessary to ensure an appropriate defence. She also referred to the state of vulnerability of the indigenous persons and the extreme violence on behalf of the Government.

The Worker member of the United Kingdom expressed grave concern regarding the events in the previous week in Bagua. These events followed two months of peaceful protest by the indigenous peoples of Peru and supporters, against legislation pushed through by the Government in breach of Convention No. 169, which provided for the right to proper consultation with indigenous peoples. Convention No. 169 allowed for the recognition of the rights of indigenous peoples to live without exclusion or discrimination, to live freely in their lands and territories, and to maintain collective property for future generations. It provided special protection to prevent loss of livelihood and the benefit of the use of the resources. However, Peru had in the previous year adopted laws to enable communal land to be disposed of more easily. This was not only in violation of the Constitutional rights of participation and consultation of rural and native communities, but also in breach of the fundamental rights recognized by the Peruvian Constitution.

For decades, natural resources had been exploited ruthlessly without participation or consultation with the people who occupied those lands; Peru’s mining and oil policy contained no guarantees of participation for its indigenous peoples. Millions of hectares of oil and gas deposits had been tapped, millions of hectares of virgin forest had been assigned for reforestation, all without reference to the peoples who were guaranteed rights under Convention No. 169. This had also been done without reference to the right of fair compensation for damages to territories, while the benefits of this exploitation accrued to the State institutions and corporations involved. Instead of promoting a national agrarian programme which guaranteed a sufficient area of land for indigenous communities, and protected the cultural and ethnic plurality of the Peruvian nation as required by Convention No. 169, the Government had instead promoted the dissolution of communities and the advancement and profit of individual producers.

Referring to the Committee of Experts’ report, she pointed out that the Peruvian Constitution was contradictory and vague, failing to make explicit which of its people were entitled to claim the guarantees of the Convention. Instead of the term “indigenous peoples”, the Peruvian Constitution employed the terms “native community” and “rural communities”, which were vestiges of the colonial past and sowed confusion as to the scope of the existing legal protections.

It was no surprise that Peru did not reply to the Committee of Experts or bring its laws into compliance with the latter’s requests; previous criticisms of labour practices had also not been brought into conformity, and the failure to act on the breaches of Convention No. 169 followed the same pattern. The Government’s current policy tended to deny the existence of indigenous peoples and their rights. President Garcia had publicly questioned the validity of communal lands and stated that the only way to guarantee development was to leave it to major companies and multinationals. He also refused the demands of indigenous organizations and environmentalists, claiming that they were motivated only by anti-capitalist or protectionist ideology and were opposed to development in Peru. The President was opposed to the recognition of isolated indigenous peoples, having stated that such groups were a mere invention, in spite of their recognition by many institutions and organizations, such as the Peruvian Ombudsman, the Ministry of Health, the Inter- American Commission of Human Rights and others.

More than 70 per cent of the Peruvian Amazon was now open to private profit, with giant oil and gas companies such as the Anglo-French company Perenco, the North American company Conco Phillips, and Talisman Energy having invested billions of US dollars into extracting natural resources from this region. For decades, indigenous peoples had watched as these industries devastated the rainforest that was their home, as well as a vital treasure to mankind. It was the duty of this Committee to respond with strong and clear determination to this flagrant breach of Convention No. 169 and the consequent suffering of peoples who had sought to defend their rights by opposing the terrible and terrifying destruction of these lands.

The Employer member of Colombia indicated that the ILO should only refer to the matters that concerned it directly, namely, the world of work. The more general issues related to indigenous and tribal peoples pertained to the competence of other human rights organizations and various international treaties and, as such, would be addressed in the appropriate frameworks, for example, the inter-American system of human rights. Only the contents of Articles 20 and 25 of the Convention were related to labour matters. He referred to a draft law aimed at regulating the issue of indigenous peoples in the country and other issues in the appropriate forums with the support of the affected peoples. This draft law should be adopted rapidly. He also referred to INDEPA, in the sense that it had a large indigenous participation but was in the process of changing. The Regional Office of the ILO had offered its technical assistance. Discussion forums had been created in the Amazon forest and participation and consultation were taking place at the local level with the hydrocarbon sector for the exploration and exploitation of indigenous lands. The same applied to the energy and environment sectors.

He requested that the names of the enterprises concerned should not appear in the report of the Committee of Experts. While expressing his sadness for the acts of violence which had taken place lately, he echoed the Government’s readiness to engage in social dialogue. Finally, he underlined the nature and scope of Article 34 of the Convention. It contained the element of flexibility with regard to the situation of each country. He also expressed his wish that sanctions be imposed on those responsible for the recent events.

The Government member of Uruguay, speaking on behalf of the Group of Latin American and the Caribbean States (GRULAC), highlighted the Peruvian Minister of Labour’s statement in reference to the progress made to ensure the application of Convention No. 169, including the establishment of regional and local mechanisms for dialogue with the indigenous peoples, the creation of the National Institute for the Development of the Andean, Amazonian and Afro-Peruvian Peoples, and the mechanisms for dialogue contained in the legislation respecting extractive activities. He also emphasized the Peruvian Ministry of Labour’s statement expressing the Government’s firm political willingness to continue to dialogue with indigenous peoples to achieve consensus on matters that concerned them. He also appreciated Peru’s recognition of the challenges it had to meet to achieve full implementation of the Convention. He requested the Office to provide the necessary technical assistance in accordance with the requests of the Government. He noted that several of the countries in the region had been called to appear before this Committee, despite the fact that they were countries which cooperated with the supervisory bodies and made efforts, on the national level, to fully respect labour rights. He expressed his concern at this situation being prolonged without interruption, to the detriment of the investigation by this Committee of other serious cases in other parts of the world. Lastly, he asked that the significant progress made by Peru in applying the Convention be taken into account in the Committee’s conclusions.

The Worker member of Venezuela stated that the Government was under the obligation to recognize, respect and protect indigenous peoples, taking into account the provisions of its own national Constitution and the international treaties, including Convention No. 169, which had been ratified 15 years ago. There had been, however, a continued climate of hostility towards indigenous peoples, beginning with the first Government of the current President, followed by those of Fujimori and Toledo, and now once again in an even more exaggerated manner with the President’s second mandate. This had been clearly demonstrated in subsequent legislative reforms intended to repress demonstrations of indigenous peoples, popular organizations, trade union leaders and peasants. All of this for the sake of restricting and suppressing their ability to defend themselves and thus denying the indigenous peoples’ rights that had been recognized historically by the Peruvian people. She indicated that, in accordance with Article 3 of Convention No. 169, the Government was required to ensure that indigenous peoples enjoyed the full measure of human rights and fundamental freedoms without hindrance or discrimination. She also pointed out that no form of force or coercion could be used in violation of their human rights and fundamental freedoms. What characterized the Peruvian model of development was that it was based mainly on the exploitation of its natural resources, which led to the destruction of the living conditions of indigenous peoples, without having considered the impact these policies had which caused outright deterioration. She emphasized the importance of considering the context in which these four decrees had been issued, which had led to the recent events qualified as genocide and state terrorism. The context was the Government’s imposition of the Free Trade Agreement on the defeated Free Trade Area of the Americas, without consulting the Peruvian people, as had occurred to other European countries in relation to the Constitution of the European Union. She emphasized the importance of the ILO’s role and supported the request made before the Committee for a high-level mission to attempt to put an end to the executions and violence, and called for the definite repeal of the four decrees that thwarted the rights of indigenous Peruvians.

A member of the United Nations Permanent Forum on Indigenous Issues thanked the ILO for the opportunity to address the Committee on the Application of Standards. With reference to the violent events that occurred in Bagua starting 5 June, he expressed his deep concern. He referred to the information provided by the Permanent Mission of Peru to the United Nations, and made available to the Permanent Forum. He also referred to a statement issued by the Chairperson of the Permanent Forum calling, inter alia, for a cessation of the violence by all parties, and expressed his deepest condolences to all the victims of the violence and their families.

The events of 5 June had followed a state of siege decreed by the Government on 8 May 2009, which was issued in response to the mobilization of indigenous peoples in the Amazon region against a series of legislative decrees that facilitated extractive industries’ concessions in the area without adequate consultations and respect for the right of indigenous peoples to free, prior and informed consent. The Chairperson of the Permanent Forum had previously expressed her concern that the state of siege resulted in the suspension of personal liberties and political freedoms of the indigenous peoples in the Amazon region, the criminalization of indigenous leaders and human rights defenders and the increasing militarization of indigenous territories.

The speaker recalled that the Government was under the obligation to respect the human rights of indigenous peoples as a party to ILO Convention No. 169, as well as other relevant human rights instruments. Furthermore, Peru had led the negotiations on the United Nations Declaration on the Rights of Indigenous Peoples and was one of the countries which had actively supported its adoption, which called for the full respect of indigenous peoples’ rights, including the rights to life, physical and mental integrity, liberty and security of person, as well as the rights related to their traditional lands, territories and resources and to their free, prior and informed consent as contained in Articles 26, 29 and 32.

Given the extreme gravity of the situation and the urgent need to avoid any recurrence, he called on the Government to: work with indigenous peoples with a view to establishing a genuine and respectful dialogue between the Government and indigenous peoples’ organizations; establish as a matter of urgency an independent and impartial investigation of the incidents in Bagua with the participation of the Ombudsman and international agencies; ensure immediate and urgent medical attention to all those wounded, and assist the families of the victims; and abide by its national and international obligations regarding the protection of all human rights, including the rights of indigenous peoples and human rights defenders, especially their right to life and security.

Finally, the speaker expressed the willingness of the Permanent Forum to assist both the Government and the indigenous peoples concerned to explore ways to reach an agreement based on dialogue, mutual understanding, tolerance and respect for human rights. There existed an urgent need for the Government and affected indigenous peoples to make renewed, concerted efforts toward a resolution of the conflicts in the region in an open and transparent manner that facilitated dialogue, avoided violence and respected human rights.

The Government representative of Peru, Minister of Labour and Employment Promotion, after thanking the Committee for its interest, indicated that such interest should be accompanied by good faith action so that the Government could engage in dialogue with the respective communities. He took exception to some of the interventions, that he considered erroneous as they created wrong impressions.

With regard to the consultation to which various worker representatives had referred, and with reference to a recent web page depicting the ILO forcing his country to sit on the defendant’s bench, the speaker made an appeal for social dialogue in good faith, which had always been a pillar of the ILO. Social dialogue presupposed the search for interlocutors who sought formulas of understanding for the common good of their countries.

As for the legislative developments, he indicated that Act No. 29376 had just been approved by the Congress of the Republic. According to that law, there was no deadline for the suspension of legislative decrees. On 24 March 2009 a permanent dialogue process had been created by decree, bringing together representatives of the Government and the indigenous peoples of the Peruvian Amazon. This demonstrated the great willingness to engage in dialogue with the indigenous communities. On 31 March 2009, a working commission had been established. All this, in addition to the Multisectoral Commission, clearly illustrated the reinforcement of the indigenous institutions, and proved the goodwill of the Government in line with social dialogue.

As for the legislative decrees, these were authorized by law, as the legislature was entitled to delegate the power to the executive. A Constitutional Court existed and could make a finding of nullity if the legal framework was exceeded. Legislative Decree No. 1090 was adopted in order to put into order diverse pieces of legislation. In this regard, it was important to underline that more than 1,250 communities received land through a programme. Some 240 communities did not benefit, however, as their documentation was destroyed in a fire. It was worth noting that forced labour and illegal logging existed in the Amazon: over 10 million hectares had been cleared due to a lack of regulation. In fact, a draft law for the adoption of a legislative framework was before Congress. It was not acceptable to ask for everything to be repealed and then engage in dialogue. Finally, the speaker added that when the Government came to power, the poverty rate exceeded 50 per cent of the population. That rate had fallen to 35.8 per cent and was expected to fall further to 30 per cent by 2010.

The Employer members stated that the present case was a serious case, comprising non-reporting and a lack of implementation of the Convention. Given that indigenous and tribal peoples often would be among the most disadvantaged in society, the Employer members urged the Minister to consider a plan of action to address the problems related to the application of Convention No. 169. They recalled that under Article 34 of Convention No. 169, “the nature and scope of the measures to be taken to give effect to this Convention (should) be determined in a flexible manner, having regard to the conditions characteristic of each country”. They also urged the Government to take immediate and positive steps to provide the Committee of Experts with the information it required to properly assess the issues. With reference to the request from the Government for technical legislative support, they stated that this should be recorded in the conclusions to ensure the provision of constructive support, especially with regard to the correct interpretation of Article 1 of Convention No. 169. A full explanation of the difficulties and concerns at the national level, involving the social partners, would help the Committee of Experts to suggest solutions for the correct application of Convention No. 169, addressing legislative and practical difficulties. The Employer members stated that they expected the conclusions to address the examination of Convention No. 169 and the comments of the Committee of Experts, and added that the Government had been asked by the Committee of Experts to reply in detail to the present comments in 2009.

The Worker members stressed that the statements of the various speakers had demonstrated the existence of a situation of extreme urgency. The murders that had been denounced were related to the subject covered by Convention No. 169. Freedom of expression as well as parliamentary language had to be respected. With regard to Legislative Decree No. 1090, which was suspended for 90 days, the time was limited because the Government had to amend the text in order to bring it into conformity with the requirements of the Convention, in particular, those provisions relating to consultation with indigenous peoples. Article 7 of the Convention established the right of participation of indigenous peoples in the development plans of the territories they inhabited. It also provided that the particular plans for these regions had to, as a matter of priority, improve the conditions of life. Convention No. 169 was not limited to labour law, as had been inaccurately stated. The Convention formed a whole and all its articles were within the competence of this Committee. In accordance with the suggestions made by many Governments and the UN Special Rapporteur, the Worker members requested that a high-level mission should be sent as soon as possible with a view to establishing the political and legal conditions that would guarantee the rights prescribed by the Convention to the indigenous peoples. The report of this mission had to be submitted to the Committee of Experts at its session in 2009, in order for it to determine the steps that had been, or still had to be, taken.

The Worker members, considering the seriousness of the case under examination, deeply regretted that the request for a high-level mission had not been accepted, despite the fact that the Government had invited the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples to visit the country.

Conclusions

The Committee noted the statement of the Government representative and the discussion that followed. The Committee noted that the Committee of Experts had issued comments over a number of years, expressing concerns over the continuing problems in the application of the Convention in several areas, particularly with regard to the need to establish harmonized criteria for the identification of indigenous peoples (Article 1), the need to develop systematic and coordinated action to protect the rights of these peoples and to guarantee respect for their integrity (Articles 2 and 33), as well as the need to establish adequate mechanisms for consultation and participation, which were provided with the necessary means to carry out their functions, including with regard to the adoption of legislative measures and exploitation of natural resources (Articles 2, 6, 7, 15, 17(2) and 33). The Committee expressed its concern that the Government had repeatedly failed to provide replies to the specific requests for information made by the Committee of Experts.

The Committee noted the Government’s indication that a draft framework law on indigenous peoples had been prepared, which, inter alia, defined “indigenous and aboriginal peoples” in terms of Article 1 of the Convention. With regard to Articles 2 and 33, the Government referred to the National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA), which was established in 2005. With regard to Articles 6 and 17, the Government stated that Legislative Decrees Nos 1015 and 1073, regarding the conditions for the disposal of communal land, had been repealed by Act No. 2926 of 2008. Regarding consultation and participation, the Government had established a Roundtable for Permanent Dialogue between the State of Peru and the Indigenous Peoples of the Peruvian Amazon in March 2009, and in April 2009 the Government had put in place a multi-sectoral commission as another forum for dialogue to address the concerns of the indigenous peoples of the Amazon.

The Committee noted the Government’s statement that a number of Legislative Decrees had been issued in 2008 relating to the exploitation of natural resources, including Legislative Decrees Nos 1064 and 1090, and that the divergence of views between the Government and the indigenous peoples concerned regarding these Decrees may not be resolved through the mechanisms of dialogue in place. The Government also informed the Committee of a subsequent mobilization of indigenous peoples and incidents in Bagua on 5 June 2009, which led to numerous deaths and injuries among indigenous peoples and the police.

The Committee expressed its grave concern regarding this violence and the resulting deaths and injuries, and urged all parties to abstain from violence. The Committee called on the Government to make further efforts to guarantee indigenous peoples’ human rights and fundamental freedoms without discrimination, in accordance with its obligations under the Convention (Article 3). The Committee noted that the present situation in the country emerged in connection with the enactment of legislative decrees relating to the exploitation of natural resources on lands traditionally occupied by indigenous peoples. The Committee noted that the Committee of Experts, over a number of years, had commented on the enactment of legislation regarding these issues without consultation of the indigenous peoples concerned, which was contrary to the Convention.

The Committee welcomed the stated commitment of the Government to re-establish dialogue, and to put in place a coherent legislative framework addressing the rights and concerns of indigenous peoples. The Committee stressed that genuine dialogue must be based on respect for indigenous peoples’ rights and integrity. The Committee welcomed the recent suspension of Legislative Decrees Nos 1064 and 1090 by Congress, and the establishment of a National Coordination Group for the development of indigenous peoples of the Amazon on 10 June 2009, in order to facilitate the search for solutions to the claims of indigenous peoples of the Amazon. The Committee called on the Government to make more efforts to ensure that no legislation regarding the exploration or exploitation of natural resources was being applied or enacted without prior consultation with the indigenous peoples affected by these measures, in full conformity with the requirements of the Convention.

The Committee stressed the Government’s obligation to establish appropriate and effective mechanisms for consultation and participation of indigenous peoples, which was the cornerstone of the Convention. Indigenous peoples had the right to decide their own priorities and to participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly, as provided for in Article 7(1) of the Convention. This would remain an issue of concern if the bodies and mechanisms for consultation and participation of indigenous peoples had no real human and financial means, independence or influence on the relevant decision-making processes. In this regard, the Committee urged the Government to immediately establish a dialogue with indigenous peoples’ representative institutions in a climate of mutual trust and respect, and called on the Government to establish dialogue mechanisms as required under the Convention, in order to ensure systematic and effective consultation and participation. In addition, the Committee called on the Government to remove the ambiguities in the legislation as to the identification of the peoples covered by it by virtue of Article 1, which was also a key aspect to be addressed in order to achieve sustainable progress in the application of the Convention.

The Committee urged the Government to take the measures necessary to bring national law and practice into line with the Convention, without delay. The Committee requested the Government to elaborate a plan of action in this regard, in consultation with the representative institutions of indigenous peoples. The Committee welcomed the Government’s request for technical assistance and considered that the ILO could make a valuable contribution in this regard, including through the ILO’s Programme to Promote ILO Convention No. 169 (PRO169). The Committee requested the Government to provide complete information in its report under article 22 of the ILO Constitution in 2009 replying to all the issues raised in the Committee of Experts’ observation, as well as the matters raised in the communications received by the Committee of Experts from the various workers’ organizations, which were prepared in collaboration with organizations of indigenous peoples.

Finally, the Committee took note with interest of the information provided by the Government that an invitation had been extended to the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples to visit the country.

The Worker members, considering the seriousness of the case under examination, deeply regretted that the request for a high-level mission had not been accepted, despite the fact that the Government had invited the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples to visit the country.