Prior consultation: a right that ensures other indigenous rights.
Karin Anchelía Jesusi
The right to consultation for indigenous peoples in Peru has existed for the last 17 years, since the ratification of the International Labor Organization’s Convention 169 concerning Indigenous and Tribal Peoples; nevertheless, timber, petroleum, and mining concessions on indigenous lands are still granted without prior consultation in the communities, causing an increase in the number of social conflicts.
Until March, the Defensoría del Pueblo, or national Ombudsman, registered 227 social conflicts, of which 51.5% were started because of socio-environmental conflicts, primarily in the regions of Amazonas, Ancash, Apurímac, Ayacucho, Cajamarca, Cusco, Junín, Lima, Piura and Puno, all of which have indigenous populations.
The Peruvian government has turned blocks over to the extractive industries that approach 75% of the Amazonian jungle. Moreover, it issued a series of legislative decrees that favored concessions for extractive projects on indigenous lands, which caused indigenous uprisings for four months in 2009 — a struggle that ended with a face-off in the Amazonian city of Bagua on June 5 of that year, which left 33 police officers and indigenous Awajun people dead.
The application of prior consultation, established by Convention 169, would be an effective tool to put an end to this social unrest. At least it seems that is how Congress understood it when on May 19, 2010, it approved legislation for the Right to Prior Consultation for Indigenous or Native Peoples recognized in the ILO’s Convention 169, and which had the consensus, support, and backing of indigenous organizations and civil society institutions.
Government without good faith
With this law, Peru took the lead by being the first Latin American country to approve a law for consultation — other nations have enacted only regulations— which merited a nod from various indigenous and human rights organizations, the national Ombudsman, the ILO Committee of Experts on the Application of Conventions and Recommendations, and United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, for being compatible with Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples. However, one month later the executive branch made eight observations on the law and prevented its enactment.
Among the executive branch’s observations is to specify that the state has the final decision on legislative or administrative measures to take, and that consultation should proceed only in areas of assigned ownership of the native communities of the Amazon. It goes so far as to say that it does not consider that the obligation to consult impacted communities every time legislative or administrative measures that could affect them are foreseen stems from Convention 169.
For Hernán Coronado, of the Amazonian Center for Anthropology and Practical Application, or CAAAP, “the observations that the Executive branch made on the Consultation Law are quite dangerous, because they end up distorting the right to consultation and not only [that], but also other rights.”
“In our opinion, the observations [made by the Executive branch] are based on political arguments, not legal ones. The Peruvian government can no longer doubt or question, as it did before, whether or not it will comply with the right to consultation. It knows that it must comply, and what it is looking for is to minimize the conditions of that right so that it is not effective,” he added.
Meanwhile, Alicia Abanto, head of the national Ombudsman’s Program for Indigenous Peoples, said: “There are two main points on which we express our opposition publicly: first, in our country there are Amazonian as well as Andean communities. We have diverse Quechua and Aymara ethnicities; therefore it is incorrect to say that there are indigenous people only in the Amazon, as suggested by the executive branch.”
“The other point is that the right to consultation applies to indigenous peoples independent of the issue of land deeds; the right is not based on whether a community has land deeds or not, because a law cannot restrict the right,” Abanto added.
Consultations for every taste
“For some time we the [indigenous] communities have asked that the Framework Law for Indigenous Peoples be approved, on the grounds of the ILO’s Convention 169, but unfortunately the government does not want to, because according to them: ‘How is it possible to consult with campesino and native communities, who are ignorant?’ That is the logic of this government,” states Benito Calixto, leader of the National Confederation of Peruvian Communities Affected by Mining, or CONACAMI.
Congress currently has two bills in line for debate and adoption. One was proposed July 6, 2010, by the Commission of Andean, Amazonian and Afro-Peruvian Peoples, Environment and Ecology, which seeks to uphold the original text of the law approved on May 19, 2010. The other one is from the Constitutional Commission, proposed one week after the first one, in which the Executive branch’s observations are accepted.
“The right to consultation is in effect, and although we don’t have a law, that is not a sufficient enough excuse for the Executive branch not to consult, nor does it exempt it from responsibility in the failure of the right to consultation,” said Coronado. “That is why we now have a proliferation of consultation methodologies; everyone and every sector are interpreting consultation in their own way.”
In October 2010, the Legislature began its first try at consultation with indigenous peoples. The Agrarian Commission promoted the consultation with national indigenous organizations about the Forestry and Wildlife Law, which with much difficulty progressed onward from the informational stage through decentralized national and regional workshops. But in the last national workshop, from May 12 to 14, 2011, the dialogue fell short when no agreement could be reached on 24 articles in that law; moreover, the indigenous leaders asserted that there was no guarantee that their contributions would be taken into account in the bill, since the final draft and regulations of the law would be in Congress’s hands and would ultimately be approved in a plenary session without adequately consulting the indigenous peoples.
And so it transpired. On June 15, Congress approved the Forestry and Wildlife Law without an adequate consultation process with the indigenous communities that had lived in the Amazonian forests since ancestral times.
On May 12, the Ministry of Energy and Mines approved the Rules of Procedure for the Application of the Right to Consultation of Indigenous Peoples for Energy Mining Activities, fulfilling a 2009 Constitutional Tribunal ruling. But the indigenous people have not been consulted on that regulation, thus since its enactment there exists a violation of Convention 169. This regulation has been observed and rejected by various institutions and indigenous organizations for a variety of reasons. The rule disregards the principle of flexibility in consultation since it sets a deadline. The rule of 20 days to complete the process and 10 more days to assess the measure, and assuming that all indigenous people make their decisions the same way and in short time, does not conform to reality.
Similarly, it equates the right of consultation with that of “citizen participation” and makes informational workshops out to be consultations, confusing people more. The regulation also specifies that consultations will be done regarding temporary hydroelectric concessions, but not for the final concessions, denying the possibility for indigenous populations to evaluate environmental impact assessments. “The state turned the discussion on the right to consultation into a procedural issue; with that, it’s looking to exhaust the debate on consultation, but consultation is not an abstract right, it is always linked to other rights, and that’s because one consults to secure other rights”, asserts Coronado.
“What is at stake are the indigenous people’s fundamental rights, like autonomy, the right to development, land, and the right to life, issues that have always been under state authority; since the ILO’s Convention 169, [the state] sees its sovereignty limited and can no longer decide for the indigenous peoples, but rather the communities can decide for themselves”, explained the CAAAP representative.
“With regard to indigenous peoples,” Coronado explains, “there exists a special characteristic that makes all rights interconnected, that is to say, the violation of one right implies the violation of other rights. Therefore, consultation is not limited to agreement or consent, since these are end goals of the process, but beyond the procedural goal there is a substantive goal, which keeps the right alive and is the bottom line: the possibility that indigenous peoples decide what their development priorities are, that these influence the state’s decisions, and that in some cases projects will be halted because they put [the people’s] fundamental rights, like the right to life, at risk.” —Latinamerica Press.