By Claudia Viale, RWI Research Assistant for Latin America, and Felipe Bedoya, RWI Regional Associate for Latin America
On May 19, the Constitutional Commission of the Peruvian National Congress passed the Law on Indigenous People's Right to Prior Consultation, clarifying the regulations of an earlier convention which guaranteed the right of indigenous communities to be consulted in advance of any legislative or administrative measures or investment projects that affect their livelihood.
The original convention guaranteeing indigenous rights, ILO Convention 169, was ratified in 1995. However, since then no progress has been made to adapt internal regulations to the Convention's rules. The law passed this May will provide for the enforcement of Articles 6 and 15 of the Convention, ensuring that a standardized consultation processes will protect the territories and way of life of indigenous peoples from activities related to natural resource extraction.
The need for these additional measures became evident in 2009, when indigenous communities in the Amazon violently reacted to executive decrees that further opened the Amazon to large-scale hydrocarbon and agro-industrial investment projects. The new projects came after a period of rapid increase in Amazon area hydrocarbon concessions between 2004 and 2008, rocketing from extractive projects taking place in 15% of the region to 75% of the land.
The Ombudsman's Office, headed by Peruvian lawyer and former Prime Minister Dr. Beatriz Merino, was instrumental in crafting the new indigenous rights law, presenting proposals that influenced the drafting of the final law passed this May as early as July 2009, following the period of considerable protests among indigenous organizations in the Amazon area in early 2009. In the context of this uprising, Merino's office strongly recommended that Congress legislate indigenous peoples' right to consult and have open dialogue with the government. Simultaneously, the Office mounted an ongoing advocacy and media campaign to mobilize public opinion in defense of indigenous rights.
Since last July, various initiatives were presented to Congress to define the right to consultation, the principles that guide its development and the steps involved. Throughout the different drafts of the law, the focus of debate has been around the term "consent." In accordance with Article 6 of ILO Convention 169, the state must establish the best means to carry out the consultation to reach an agreement or consent. This principle was included in the original draft submitted by the Ombudsman's Office, but the first version Congress passed omitted any reference to indigenous consent, ignoring the provisions of the 1995 Convention.
Several congressmen and representatives of the Andean and Amazonian indigenous organizations lambasted this omission. Mario Palacios, President of the National Organization of Communities Affected by Mining in Peru (CONACAMI), said that leaving out the principle of consent meant "giv[ing] the State authority to have the final word if an agreement is not achieved."
After considerable debate, Congress approved the law (Ley del Derecho a la Consulta Previa a los Puebos Indígenas y Originarios, pdf) on May 20. The new law established the necessity of indigenous consent and removed language from earlier drafts that denied indigenous people a "right to veto" over particular extractive projects. The article in question now reads as follows:
The purpose of the consultation is to reach an agreement or consent between the state and indigenous peoples on legislative or administrative measures that affect them directly, through intercultural dialogue to ensure their inclusion in the state's decision-making processes and the adoption of measures which are respectful of their collective rights.
The approval of this law is undoubtedly an important milestone in recognizing the rights of Peruvians who have been disproportionately affected by extractive activities that have historically taken place in their territories without prior consultation or consent. These extractive activities have harmed native populations, protected areas, biodiversity, small-scale agriculture and water resources, and have damaged not only environmental and economic aspect of indigenous peoples' lives, but also have affected them socially, culturally and politically.
Congress passed the law just days before the anniversary of last year's Bagua confrontation, which took place in the northern Amazon area and left 34 policemen and indigenous people dead. Due to this timely resonance, Peruvians expected the executive to move quickly to enact the law, as a chance to avoid social conflict, begin to permanently seek consensus and dialogue with communities and as a way to craft a more democratic and inclusive regime.
To the surprise of many, President Alan García disagreed with the law as passed. In a letter (pdf) to the President of Congress, García and Prime Minister Javier Velasquez Quesquén asked congressional representatives to amend the law's consultation procedures, arguing that the safeguards of indigenous rights could delay investment projects. Furthermore, they requested that Congress redefine "indigenous peoples" to exclude Andean and coastal populations from the roster of communities that had a right to consultation.
Reactions to the executive's position were swift and heated. Indigenous rights lawyer Raquel Yrigoyen said the decision of the executive to challenge the Law on Consultation constituted a breakdown in the rule of law, as the state was attempting to privilege "interests" over "rights." Similarly, members of the Governing Board of the Interethnic Association for the Development of the Peruvian Jungle (AIDESEP) warned that the government's underlying intention is "to perpetuate the imposition of projects for natural resource extraction and the destruction of the Peruvian jungle." And CONACAMI President Mario Palacios declared that the executive's comments "show its authoritarianism, racism and discrimination" towards indigenous peoples.
The law was returned to Congress on June 22, and to date, no further progress has been made towards either satisfying the executive's demands or guaranteeing indigenous rights.
In this context, Congress has two choices. It can accept the changes proposed by the executive or, using its constitutional powers, it can listen to the claims of indigenous organizations and the Ombudsman's Office and enact the law as it was passed, despite the protestations of the executive.
Civil society remains vigilant to Congress' decision and hopes the law is enacted soon and without considering the President's comments, since accepting them would significantly reduce indigenous peoples' rights to decide over the use of their territory and exclude communities in the Andes where large scale mining activities will take place.
LEARN MORE
- Peruvian Democracy Agonizes at the Devil's Turn: June 5th and June 17th, 2009—Same Actors, But a Very Different Script
- The Amazon's Indigenous Community Strikes to Protest Natural Resource Policies in Peru
- Debating the Constitutionality of Legislative Decrees that Facilitate Opening Indigenous and Peasant Communal Lands to Large Private Investment
