Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

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

A Government representative stated that the Government of Peru had always demonstrated its willingness to engage in dialogue to find a solution to the justified claims of indigenous peoples, through dialogue mechanisms such as the National Coordination Group for the Development of the Amazonian Peoples, which included representatives of the Executive, the regional government authorities and Amazonian indigenous organizations. The National Coordination Group was responsible for, among other things, investigating and analysing the events at Bagua, revising and updating legislation on issues relating to the forest and its fauna, establishing a mechanism for prior consultations for the application of Convention No. 169, and drawing up the National Plan for the Development of the Amazonian Peoples. The Government affirmed its willingness to advance with investigations to establish political and criminal responsibility for the events in Bagua which had caused the deaths of 23 police officials and ten civilians, and the disappearance of a police officer. A number of investigative proceedings had been initiated under the auspices of the National Coordination Group, within the Executive, the Congress of the Republic and the Office of the Attorney-General, with the guarantees of due process normally expected in a State governed by the rule of law. The Congress of the Republic had also set up a Multi-Party Commission to investigate the incidents in Bagua which has already reported to Congress. Within the Office of the Attorney-General and the judiciary, proceedings were under way against senior officials of the national police and against indigenous persons in connection with various alleged offences. The State had provided legal aid for all persons being prosecuted in connection with the events in Bagua in order to safeguard their rights as citizens. The State guaranteed that the investigations and proceedings involving political, police and indigenous authorities would be objective and impartial, in accordance with the principles of due process and in order to ensure that the deplorable events of Bagua did not go unpunished.

The Government had undertaken action to bring its definition of indigenous peoples into line with that of the Convention. To that end, on 19 May 2010, the Congress of the Republic had approved the Bill on “the right to prior consultation of indigenous and original peoples, as recognized in ILO Convention No. 169” (“the Act on Prior Consultation”). The Act, as approved, had been submitted to the President for approval. It reflected the proposals of the People’s Ombudsperson and the agreements reached through consultations with representatives of indigenous peoples. The Act included a definition of indigenous peoples that was consonant with that of Convention No. 169, and included the following elements: the characteristics of the indigenous peoples in terms of their social institutions, cultural patterns and customs which distinguished them from other sectors of the national community; their identity by virtue of their direct descent from the original populations that inhabited the national territory; and their awareness of being a group possessing an indigenous or original identity.

The Act provided that the National Institute for the Development of the Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) was a technical body specializing in indigenous affairs under the auspices of the Executive. It was a multisectoral and cross-cutting body operating at all three levels of the Government, and headed by an indigenous leader in consultation with indigenous peoples.

With regard to the design of a dialogue and consultation mechanism, the Act provided that prior consultations should be held on any national and regional development plans, programmes and projects that affected the rights of indigenous peoples. It also established that the purpose of consultation was to reach agreement between the State and indigenous peoples or obtain the consent of those peoples with regard to the legislation or administrative measures that concerned them, through intercultural dialogue that guaranteed their inclusion in the decision-making process of the State and the adoption of measures that respected their collective rights. The Act had elicited a positive response from the most representative organizations of Peru’s Amazonian peoples. In addition, a number of sectors had specific dialogue and participation mechanisms, as for example in the environmental sector, the mining sector and the hydrocarbon sector. The process for citizens’ participation in those activities was implemented through consultation mechanisms that came into play during the development and evaluation of environmental impact studies and, once they had been approved, in the form of citizens’ monitoring and/or supervisory programmes.

Peru had made significant progress in social development and in combating poverty. Such progress had been possible as a result of the social policies implemented by the Government to promote productive employment and decent work, in accordance with the Global Jobs Pact and the ILO Declaration on Social Justice for a Fair Globalization, 2008. It was therefore particularly difficult to accept the fact that the Committee of Experts had recommended the suspension of activities to explore and exploit natural resources that affected the peoples covered by the Convention, thereby exceeding its mandate. Extraction activities had played a fundamental role in the social progress achieved, in the context of an international crisis. Their contribution had been particularly important in developing local economies and improving the living conditions of those living in the areas where the industries in question operated. Suspending exploration and exploitation activities would affect over 120,000 jobs, as well as the incomes that regional and local governments received as their share in the benefits of extraction activities.

The National Coordination Group had established a round table which had developed and approved by consensus a National Plan for the Development of the Amazonian Peoples, which envisaged positive measures for the development of these peoples in relation to such essential matters for their development as: property rights, bilingual intercultural education, the extension of coverage by the public health system, the participation of indigenous peoples in the management and benefits of natural protected areas and the sharing in the benefits from natural resources, the environment, and respect for the culture and collective knowledge of indigenous peoples among others. The plan was in the process of being implemented.

The property rights of indigenous peoples were inalienable in accordance with article 89 of the Political Constitution of Peru. Communities could assert their right of ownership or occupation before any administrative or judicial authority in the event of such rights being affected. There were a series of provisions to give effect to this right which were intended to determine the lands that were traditionally occupied by native and rural communities and to promote the formalization and grant title to the properties of indigenous peoples with their participation, so that they could assert their right of ownership or occupation before any administrative or judicial authority in the event of such rights being affected.

With regard to the adoption of educational measures to eliminate prejudices by the State in relation to indigenous peoples, action had been taken to ensure that the educational materials that were to be distributed and delivered for educational purposes contained information based on criteria of equity and inclusion relating to the societies and cultures of those peoples. The Ministry of Education published educational materials for initial and primary education in ten indigenous languages and in Spanish as a second language.

The Government and Peruvian society had made great efforts to achieve the participation of indigenous peoples in their representative institutions, making use of effective and systematic mechanisms for participation, consultation and dialogue and reaffirming their own identity as a multi-ethnic and multicultural nation.

The Employer members stated that the present case was one that exemplified how the ILO’s supervisory machinery should ideally function, and also demonstrated the importance of having a diversity of cases before the Committee. They noted that in the information it provided, the Government had directly addressed virtually all of the points raised in the Committee of Experts’ report, and the Committee’s conclusions of last year. With regard to the Act on Prior Consultation, they noted the following: (1) the Act’s definition of indigenous and tribal peoples was consistent with that contained in the Convention; (2) the Act laid down the right of prior consultations of indigenous and tribal peoples with respect to any legislative or administrative measure affecting them; (3) the consultations envisaged by the Act were to be held with a view to achieving consent on the measures proposed and, if agreement in this respect could not be reached, the Government was required to make a decision taking into consideration the rights of indigenous peoples; (4) the Act had to be interpreted in accordance with the provisions of Convention No. 169; (5) representative organizations of indigenous and tribal peoples had been consulted prior to the adoption of the Act on prior consultation; and (6) the drafting of the Act took into consideration several documents, including: the drafts presented by the Office of the Ombudsperson and parliamentarian groups (Bloque Popular, Nacionalista and Union por el Peru), the results of the Working Group No. 3 of the National Coordination Group for the Development of the Amazonian Peoples which was integrated by representatives of the Executive and indigenous Amazonian organizations, and the report on prior consultations prepared by the special commission established to study and recommend solutions for indigenous people’s issues. Although it was for the Committee of Experts to evaluate the conformity of the provisions of the Act with the Convention, they underscored that it was nevertheless important to recognize the actions taken by the Government and commended it for them. The Government had amply demonstrated its commitment to respond to the conclusions of the ILO supervisory bodies.

They noted that a number of actors and organizations had commented favourably on the Act. Several organizations, including the Inter-Ethnic Association for the Development of the Peruvian Rainforest (AIDESEP), the Peasant Farmers’ Confederation of Peru (CCP), National Agrarian Confederation (CCNA), the National Coordinating Committee for Communities Affected by Mining (CONACAMI) and the Confederation of Amazonian Nationalities of Peru (CONAP), all considered the Act on Prior Consultation an important achievement. The UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples commended the law’s adoption and considered that it could establish an important precedent as a best practice for other countries of the region and the world. With regard to the Committee of Experts’ request that the exploration and exploitation of natural resources be suspended until the peoples affected and covered by the Convention were consulted, the Employer members maintained that the Convention did not provide for or envisage such injunctive authority. Stating that injunctions of this nature held potentially serious consequences for a nation’s economic activity, in particular its ability to attract foreign direct investment, they stressed that this request of the Committee of Experts needed to be re-examined. The Experts needed to understand that the real issue was that economic activity resulted in taxes and revenues that supported the local communities. The conclusion of the Experts that economic activity should stop was not supported by the legislative history of the Convention and jeopardized foreign direct investment.

They recalled that Article 6 of the Convention was the principal clause concerning the right of consultation, and that the definition of the latter term had been extensively discussed in the deliberations preceding the Convention’s adoption. From the records of these discussions, it was clear that consultation did not equate to, or require, the consent of the parties being consulted. The record of the second round of discussions preceding the Convention’s adoption showed that the Employers’ group believed the term “consultations” to signify “dialogue, at least”, and the Office itself had stated that it did not consider the consultations referred to, to require the agreement or consent of those being consulted. In its observation, however, the Committee of Experts appeared to have interpreted the term so as to impose a more exacting requirement upon the Government beyond that envisaged by the Convention; the potential consequences of this interpretation would be discussed and examined by several of the Employer members in the course of the discussion.

The Worker members indicated that the discussion of this case formed part of the follow-up to the discussion held in 2009 and the serious incidents that had occurred in Bagua, leaving 33 dead. These incidents had been related to the adoption by the Government of decrees affecting the rights of indigenous and tribal peoples to lands and to natural resources. The decrees were not in conformity with the provisions of Convention No. 169, which called for consultation with the peoples concerned, through appropriate procedures, and in particular through their representative institutions, whenever consideration was being given to legislative or administrative measures which might affect them directly. Following his visit to the country, the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples had also confirmed the seriousness of the situation. Following the incidents of 2009, a commission had been established to investigate the violence that had occurred in Bagua. Nevertheless, there remained the greatest confusion as to the functioning of the commission, and particularly with regard to its impartiality. Although a report had been published, it had not shed light on those directly responsibile, nor had it been signed by the representatives of indigenous peoples.

In this context, the indigenous peoples had called for the adoption of legislation requiring the State to consult them. On 19 May 2010, the Parliament had approved a Bill on prior consultations, which appeared to contain an exhaustive list of the principles to be followed to achieve consultation within the meaning of the Convention and could therefore serve as a first step in the improvement of relations. However, neither the Committee of Experts nor the Conference Committee had yet examined the legislative text in question, despite the commitment given by the Government to provide information on the measures taken to bring the national legislation into conformity with the Convention. The Conference Committee was therefore not able to express an opinion on whether or not the Act on Prior Consultation of May 2010 was in conformity with the Convention, both in terms of its scope of application and in relation to the protection provided, consultation procedures and the concept of “land” covered by Article 13 et seq. of the Convention. The Act needed to be in conformity with the definition of indigenous peoples, but also with the fact that these peoples “owned” the lands with which they had a special relationship. The Government had also undertaken to prepare and adopt a plan of action, in consultation with indigenous organizations, as indicated in the conclusions of the Committee the previous year, which referred to the establishment of mechanisms for permanent dialogue between the Government and Amazonian indigenous peoples and a multisectoral commission which would constitute another dialogue mechanism. Nevertheless, one year later, no plan had been adopted and the ad hoc dialogue body had not had any tangible effects.

The action taken by the INDEPA also raised problems in view of its lack of knowledge of the problems and the lack of representation of indigenous peoples within it. In July 2009, the INDEPA, despite the fact that it had an essential role to play in the application of the law and the promotion of indigenous peoples, had engaged in acts of political interference in the operation of the Amazonian organization AIDESEP with a view to obstructing its action. These allegations of partiality were damaging to the Institute and could only jeopardize the application of the law once it had been adopted. It also appeared that the AIDESEP had not been consulted concerning the project to relocate Amazonian peoples, even though this project endangered the social, political and economic integrity of Amazonian peoples and communities. Moreover, issues of relocation were covered by Article 16 of the Convention. These flawed consultations concealed major economic interests. The Ministry of Energy and Mining was continuing to grant permits for the exploitation of hydrocarbons without any consultation and contrary to the Act on Prior Consultation. Over recent weeks, 25 new oil and gas exploitation zones had been granted, mainly in Amazonia.

In conclusion, the Worker members indicated that, even if the Act on Prior Consultation constituted progress, it was necessary to remain cautious and the Committee should not reduce the pressure exerted on the Government. In practice, the Act still has to be approved by the President. In addition, the Act did not take into account the recommendations of the Committee of Experts relating to the suspension of concessions in indigenous lands, did not deal with the repeal of the previous legislation, nor of compensation for acts that were contrary to the Convention. It was therefore important for the Act to be examined by the ILO before its signature by the President. Doubts remained concerning the Government’s real political will to comply with prior consultation procedures, particularly since several agreements concluded between the executive authorities and the organizations of Amazonian indigenous peoples had, in practice, not been supported by the executive authorities in Congress. An effective framework for collaboration with the INDEPA was essential to give effect in practice to the obligations deriving from the Convention. For that purpose, the composition of the INDEPA would need to be reviewed to ensure that it effectively represented the interests of the peoples covered by the Convention. In that respect, the Government could benefit from ILO technical assistance.

A Worker member of Peru observed that the tragic events that had occurred at Bagua had been the result of the failure to give effect to the Convention, as reflected in the eight points emphasized by the Committee of Experts. A true and impartial investigation into everything that had occurred in Bagua had not been carried out. The body entrusted with the investigation had not been able to issue an objective report in view of the refusal by the Government’s representatives to accept any responsibility on the part of the legislative and executive authorities. She added that the Government had not prepared any plan of action beforehand in consultation with the representative organizations of indigenous peoples. The discussions referred to by the Government in the context of the dialogue round tables did not amount to an adequate response. They consisted of incomplete dialogue which included the Amazonian people, but not the Andean peoples.

With regard to the INDEPA, she noted that the necessary steps had still not been taken for its reform so as to allow dialogue concerning long-term policies and plans of action with the participation of indigenous peoples. It was not composed of real representatives of indigenous peoples. Its bodies were bureaucratic and did not include consultative mechanisms, and its officials lacked knowledge of indigenous peoples. The INDEPA supported the establishment of a parallel board of directors organized to hinder the functioning of AIDESEP; the lack of impartiality by the body would have serious consequences for the application of the law.

The Act on Prior Consultation adopted by Congress on 19 May 2010 was a positive step obtained as a result of internal and international pressure, but it still had not been officially approved. It was regrettable that so many years had elapsed without the adoption of the consultation machinery envisaged in the Convention. There were serious doubts concerning the real commitment to give effect to the provisions of the Convention respecting consultation. There also remained many serious situations of conflict relating to the significant increase in the exploitation of the natural resources in the lands occupied by Andean and native communities, in relation to which they had not been consulted. Some 72 per cent of the Amazonian territory had been granted under concession for the exploration and exploitation of hydrocarbons, but the current participation mechanisms did not amount to real consultation. Progress needed to be made in the implementation of the recent Act on Prior Consultation and in the application of all the stages of consultation. Nor had legislative measures been adopted to guarantee the participation of indigenous peoples in the benefits from mining, oil and gas and compensation for the damage caused by such activities. Nor had the question of the lack of formal land title been resolved. The Government had not adopted educational measures to eliminate prejudice against indigenous people and the lack of indigenous teachers was a matter of concern.

Another Worker member of Peru stressed the importance of freedom of expression and the guarantees that were afforded by the rule of law. He confirmed that the Government had continued to hold dialogues with apus (tribal chiefs), non-governmental organizations and peasant farmers. He highlighted the importance of the judiciary carrying out its work to investigate the deaths of indigenous peoples and police staff, and to investigate the disappearances. It was important that the legislative authority carry out its work regarding the official approval of the Act on Prior Consultation. He said it would be advisable to broaden training for peasant farmers and indigenous peoples on their rights and obligations in order for them to be able to decide on their future democratically and in a sovereign manner.

The Employer member of Peru provided detailed information on the national legislation relating to the right to consultation. He explained that, although it was the State that granted the concession for exploiting natural resources, the title to the concession did not confer ownership of the land on the enterprise or holder of the concession, nor did it authorize them to begin operating. Before any exploration or exploitation could start, the holder of the concession should reach an agreement with the owner of the land. In the case of a concession located on community land, the Constitution guaranteed that peasant and indigenous communities had the autonomous right to use the land as they saw fit, within the framework of the law. There were a number of national laws and regulations that protected the rights and customs of indigenous peoples as well as an official standard for the protection of the environment. He described the integrated system for assessing environmental impact, which had standardized and transparent criteria, and procedures to ensure that the proper participatory channels were used. Moreover, with the new Act on Prior Consultation, the country could definitely be said to have the highest standards for consulting indigenous peoples in accordance with the terms of the Convention. In the case of the mining and energy sector, the existing standards required that, before any such activities could be started, it be ascertained whether the interests of the indigenous peoples inhabiting the area directly concerned by a project might be affected, so that any concerns regarding any possible social, economic, environmental or cultural impact could be examined and taken into account. The speaker felt that the Committee of Experts’ observations were inappropriate, given that the country’s standards complied amply with the objectives of the Convention.

He concluded by stating that indigenous communities enjoyed the economic benefits accruing from the exploitation of natural resources by virtue of a levy, i.e. the share of State income deriving from the economic exploitation of those resources that local and regional governments were entitled to, irrespective of any compensation that enterprises might pay the owners for the use of their land.

The Government member of the Bolivarian Republic of Venezuela, spoke on behalf of the Government members of the Committee, Member States of the Group of Latin America and the Caribbean States (GRULAC). He cited the progress that had been made in ensuring that the Convention was applied, which had led to the drafting of a Development Plan for the Amazonian Peoples in which they participated fully, and the approval by Congress of the Act on Prior Consultation establishing the requirement that the indigenous peoples be consulted in advance so as to obtain their agreement or consent to any national or regional development plans, programmes or projects affecting their rights. He hoped that the conclusions to be adopted would take into account the discussion that had been held, without overlooking the new information, data and arguments put forward by the Government. In conclusion, he reiterated his firm hope that the Committee of Experts would confine itself to the explicit mandate it had received from the Governing Body.

The Worker member of Paraguay expressed his solidarity and committed support for the indigenous peoples and peasants of Peru, and expressed serious concern about the problems in applying the Convention. He said that the General Confederation of Workers of Peru (CGTP) and federations of peasants and indigenous peoples had repeatedly denounced the increase in conflicts in indigenous and campesino areas, and that such conflicts were closely related to access to, and control of, natural resources. In addition, the Government persisted in applying systematically a vertical administrative framework to Amazonian and Andean territories, which did not provide any guarantees of environmental protection. He pointed out that 72 per cent of the Amazonian area was dedicated to exploiting hydrocarbons, which meant that it was strategically and politically important to have a mechanism for the active participation of indigenous peoples and peasants relating to such activities. He regretted the fact that current legislation only provided for administrative and information measures, which did not in any way fulfil the obligation of consultation set out in the Convention. Given the risk of a resurgence in social conflicts related to the exploitation of natural resources because of lack of prior consultation, he requested that such obligation of consultation be implemented in practice as soon as possible.

The Employer member of Mexico argued that the Committee of Experts had exceeded its mandate. He explained that he had been the Employer spokesperson during the discussions that led to the adoption of Convention No. 169 and that he knew well the spirit of the provisions. It was inaccurate that consultations had to achieve agreement and it was incorrect to interpret that it was possible to require a hold on or suspension of economic activities. Article 6 of the Convention did not have, and never had, a binding nature. The Committee of Experts should not be able to change the meaning of the provisions of Conventions. He concluded by declaring that he felt that the Government was adopting a legislative package appropriate for implementation of the Convention.

The Worker member of the Bolivarian Republic of Venezuela highlighted the importance of ancestral rights of indigenous peoples as native peoples. She recalled that 70 per cent of the country’s population had its ancestral roots in indigenous communities. She requested that the Government acknowledge the right of Peruvian indigenous peoples to maintain their culture and traditions. She urged the Government to enact the Bill on the right to prior consultations, end indiscriminate over-exploitation of natural resources, put an end to the persecution of Andean and union leaders and guarantee the right of indigenous peoples to mandatory consultation on decisions in which they had a say.

The Employer member of Colombia stated that only five of the provisions of the Convention related to labour issues and that the other topics included were outside the ILO’s competence. There were many regional and international instruments, as well as specialized organizations, to guarantee the protection of indigenous peoples. The ILO should limit itself to the field of labour. He expressed his concern that the Committee of Experts wished to introduce an injunctive measure to suspend economic activity that did not exist in the Convention. He also pointed out that there was no justification in the Convention for a need to reach agreement through consultations.

The Worker member of France responded to certain statements of the Employer members by recalling that Convention No. 169 was not the only Convention in which the ILO had addressed questions of civilization in close synergy with the United Nations. The Convention had been adopted by the Conference, and it was an international treaty that, once ratified by a member State, had to be implemented in its entirety. As regards the calling into question of the Committee of Experts’ mandate and impartiality, it should be recalled that the interpretation of the text of a Convention was indispensable in order to clarify how its objective might be effectively attained. It should therefore be stressed that the Committee of Experts had not exceeded its prerogatives. The speaker emphasized that the word “consultation”, as reflected in the text of the Convention, implied that consultations had to be undertaken in good faith, that is to say taking into account the views expressed. In the case under discussion, however, the Committee of Experts considered that the Government had not conformed to the objective of the Convention. He expressed the hope that the Act on Prior Consultation, referred to by the Government, would resolve the problem. However, the fact that three-quarters of the country had already been handed over for exploitation was a source of concern. The value of the territories went far beyond their market value. The discussion of this case revealed two conflicting ideologies: on the one hand, a capitalist approach, and on the other, a philosophy of sustainable development.

The Employer member of Ecuador expressed his concern at the interpretation of Article 6 of the Convention. The Convention did not authorize indigenous or tribal groups to set up parallel legislative bodies with the power to establish national standards or the right to veto legitimate measures taken by the national authorities when acting within their sphere of competence. He recalled the debate that had taken place when the Convention was being drafted, when the Workers’ group presented an amendment to replace the term “consult” by “obtain the consent of” which was not accepted; that meant that the outcome of consultations was not binding. The spirit of the Convention was that the opinion of indigenous peoples should be sought when a government measure, or any matter stemming from the public authorities, might endanger the traditions and culture of their peoples. There was no way that this could be understood as opening up the possibility of their preventing or opposing categorically, irrespective of the will of the rest of society, a particular development model or projects going beyond the specific interests of those communities. The consultations should also serve to determine whether the groups wished to participate in, or stay out of, projects being undertaken in the proximity of their areas of interest and, should they decide to participate, what form that participation should take. That, however, did not imply that they were empowered to take decisions in the place of the duly authorized national bodies. He regretted that the Committee of Experts had gone beyond its mandate by requiring the suspension of projects relating to the exploration and exploitation of natural resources.

The Employer member of Spain pointed out the progress made by the Government, including the Act on Prior Consultation. As for the discussion on the concept of consultations, he stressed the importance of respecting the rights of indigenous and tribal peoples to land, respect for the environment, the search for sustainable and harmonious development and the importance of corporate social responsibility, but he indicated that the concept of consultations could not engender the notion of a veto. He felt that it was inappropriate to consider that the consultations provided for in the Convention had a binding nature.

The Government representative welcomed the opinions and comments given on the progress that had been made. She said that the role of the INDEPA had changed because, at the request of leaders of indigenous peoples, it had been placed under the purview of the Presidency of the Council of Ministers as of February 2010. It was now a specialized technical body that carried out its functions in a multi-sectoral and cross-cutting manner at all levels of Government. She said that an apu (tribal chief) would be appointed to head the INDEPA; consultations were under way with indigenous groups to that end. She also said that the National Coordinating Group had prepared a National Plan for Amazonian Development, comprising ministries, regional governments and two representative organizations of Amazonian peoples: AIDESEP and CONAP. She described the measures being taken to fight discrimination and racism and the new resources being allocated to education in rural areas.

She said that a source of constant concern was the fact that some of the benefits derived from extracting natural resources were granted to the peoples and communities where such activities were undertaken. Six types of concessionary payments had therefore been created for the various types of extraction activity. She said that, during 2009, US$1.2 billion had been paid in concessionary payments. She concluded by reaffirming her commitment to continue ensuring a different future for members of Peru’s indigenous communities.

The Employer members thanked the Government for the information it had provided during the discussion, noting that the Committee of Experts would need to assess the actions mentioned by the Government with respect to the Act on Prior Consultation and would indicate in its nextreport any possible flaws or shortfalls. While it typically took governments years or decades to act in response to observations, the Government of Peru had taken prompt action within a year and should be commended. They noted that no person or institution was infallible and that, based on the testimony and evidence presented, it would be prudent for the Committee of Experts to reconsider its conclusions with respect to the interpretation of certain provisions of the Convention that had been addressed by Employer members.

The Worker members considered that the Employer members had unjustly challenged Convention No. 169 and that their discourse on treaty interpretation could not hide the lack of any real arguments on the substance of the case. Yet this was a very serious case from which lessons could be drawn for the entire region. The recently adopted Act on Prior Consultation might be the first step towards the amelioration of relations which were currently characterized by violence. However, certain questions remained unanswered: the exact circumstances of the serious incidents in Bagua; the conformity of the Act with the Convention; the composition and impartial operation of the INDEPA; the repeal of previous laws; and the right to compensation for victims who had suffered from the application of earlier legislation. The Government had taken a first encouraging step and, in order to prove its good will, should accept a technical assistance mission of the Office at the earliest opportunity so that the Committee of Experts had all the necessary information it needed to be able to answer the questions raised.

The representative of the Secretary-General stated that she wished to provide some clarifications. The word “consultation” was probably found in every ILO instrument; it was the very backbone of international labour standards, since all Conventions and Recommendations included a provision on consulting with workers’ and employers’ organizations, or required consulting with “workers and employers” concerned or groups of persons concerned, such as persons with disabilities. However, this common, very important concept had to be construed within the overall context of the instrument in which it was placed. Consultation was an obligation irrespective of the language used, such as the expression “shall consult”. Article 6 of Convention No. 169 highlighted this term more than most provisions, and to interpret it correctly, one needed to look at the Article in its entirety, and not just part of it. Paragraph 2 of Article 6 set out that consultations carried out in application of the Convention had to be taken in good faith, and in a form appropriate to the circumstances, with the objective of achieving agreement or consent. This provision did not require that consultations had to reach agreement, but meant more than merely consulting and moving on. One had to consult in good faith and with the objective of achieving consent. Both the English and the French versions of the text were clear. They did not compel agreement or consensus. The same understanding was reflected in the Committee of Experts’ observation which was being discussed in this case.

She further stated that, as an ILO Convention, Convention No. 169 could not be disowned; it was a revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107). The ILO was the first organization with a Convention on indigenous peoples and it was the only organization with a binding instrument on indigenous peoples. These elements of clarification were provided while recognizing that this remained a sensitive and controversial issue.

The Employer members thanked the Office for the clarifications but indicated that the word “consult” had a different meaning in English than in French, where it had a stronger connotation. Leaving this distinction aside, it was clear that failure to consult should not be taken to mean that one might stop economic development. To this end, when they questioned the Committee of Experts as to the true meaning of the Convention, they were referring to its injunctive aspects.

The Worker members stated that in adopting these conclusions they had demonstrated great flexibility. They hoped that the Government would accept the technical assistance offered by the Office.

Conclusions

The Committee noted the statement by the Government representative and the discussion that followed. It noted that it had examined this case in 2009, and that the Committee of Experts, referring to the conclusions of this Committee, had called on the Government to take a range of measures of a legislative, institutional, awareness-raising and educational nature.

The Committee noted the Government’s indication that the Congress of the Republic of Peru had adopted on 19 May 2010, an Act on the Right to Prior Consultation of Indigenous or Original Peoples as recognized in ILO Convention No. 169, containing, inter alia, provisions to identify the peoples concerned. The Government also provided information regarding Presidential Decree No. 022-2010 endowing the INDEPA with the status of a specialized technical body. The Government further provided information on the work of the four dialogue round tables established in June 2009 with the participation of Amazonian peoples, which, inter alia, covered investigations into the Bagua incidents, and the formulation of a development plan for the Amazon area. It also referred to access of indigenous peoples to education, measures to eliminate prejudices in respect of indigenous peoples as well as initiatives aimed at improving their conditions.

The Committee welcomed the Government’s acknowledgment of the importance of consultation and the consequent adoption by the Congress of the Republic of the Act on Prior Consultation, and trusted that it would be promulgated rapidly by the President of the Republic. The Committee urged the Government to provide full information to the Committee of Experts on the promulgation and implementation of the Act to enable it to assess compliance with the provisions of the Convention. It urged the Government to ensure that the new Act on Prior Consultation was signed and implemented and to ensure, if needed, that transitional measures were adopted, in accordance with Articles 6, 7 and 15 of the Convention, as discussed in the Committee. The Committee also recalled the need for coordinated and systematic action to protect the rights of indigenous peoples, as provided for in Articles 2 and 33 of the Convention, which required state institutions that enjoyed the trust of indigenous peoples and in which their full participation was ensured. The Committee noted the information provided that the Act on Prior Consultation attributed a central role to the INDEPA as the technical body specialized in indigenous affairs and accordingly considered that the reform of this body, with the full participation of the representative organizations of indigenous peoples, was necessary to ensure its legitimacy and a genuine capacity for action and to secure the application of this important Act.

The Committee noted the formulation of a development plan for the Amazon area which, however, would not cover indigenous peoples of the Andean region. It also noted that progress needed to be made in relation to the formulation and implementation of plans of action to address in a systematic manner the pending problems relating to the protection of the rights of the peoples covered by the Convention, as requested by the Conference Committee and the Committee of Experts. It emphasized the need to ensure that these plans of action were developed and implemented with the participation of the representative organizations of indigenous peoples, in accordance with Articles 2 and 6 of the Convention.

The Committee requested the Government to provide full information in a report to be submitted for examination at the forthcoming session of the Committee of Experts in reply to the matters raised by this Committee and the Committee of Experts, including detailed information on the promulgation and implementation of the new Act on Prior Consultation and related transitional measures, the implementation of the development plan for the Amazon region, as well as information on the effect of Ministerial Resolution No. 0017-2007-ED setting admission criteria on bilingual teacher training. The Committee encouraged the Government to avail itself of the technical assistance of the Office to ensure that adequate progress on the implementation of the Convention was made.

The Worker members stated that in adopting these conclusions they had demonstrated great flexibility. They hoped that the Government would accept the technical assistance offered by the Office.