Peru's Consultation Law: A Victory for Indigenous Peoples?
September 22, 2011 | Gregor MacLennan
On September 6, 2011 Peru's president Ollantay Humala signed into law landmark legislation that requires the government to consult with indigenous peoples before developing new legislation or creating concessions for infrastructure, energy and mining projects that affect the lives, territories and rights of indigenous peoples.
Aggressive new legislation designed to weaken indigenous rights and facilitate resource extraction was passed by the previous Garcia government without consultation and provoked protests by thousands of indigenous peoples across the Amazon in 2008 and 2009, ending in a deadly clampdown by police in Bagua. The expansion of energy, infrastructure and mining projects in indigenous territories without their consent is at the root of many of the 141 ongoing social conflicts between communities, government and companies in Peru. Humala's government hopes that the new law will help mitigate these ongoing conflicts that threaten to delay some of the $50 billion companies plan to spend on natural resource projects in Peru over the next decade. However, for many indigenous peoples the problem is not just the lack of consultation, but a model of development based on natural resource extraction that contaminates the environment and undermines their way of life.
The law establishes that the aim of consultation is to reach agreement or consent between the State and the indigenous peoples (article 3). It also establishes that the contents of the law must be interpreted in line with the obligations established in Convention No. 169 of the International Labor Organization (ILO), ratified by Peru in 1994. However should an agreement not be reached between the government and indigenous peoples the law gives the government final say (article 15), which runs in counter to governments' obligation to obtain free, prior and informed consent before adopting legislative or administrative measures that affect indigenous peoples (UN Declaration on the Rights of Indigenous Peoples, article 19). In a "complimentary provision" the law also exonerates existing projects and legislation from the need to consultation, despite Peru signing ILO 169 into law in 1995.
The law has been received with hesitant optimism by the national indigenous organization, AIDESEP, the UN Special Rapporteur, James Anaya and the Inter-American Commission on Human Rights (IACHR). James Anaya stressed his hope that the law "... is indicative of a strong commitment by the Peruvian State to respond to the demands of indigenous peoples to be consulted about measures that directly affect them, and in particular about extractive industry projects in and around their territories." AIDESEP has called attention to the contradiction in the provision exonerating existing projects and laws with previous rulings by the country's Supreme Court and the IACHR that the right to consultation came into affect when Peru's congress passed ILO 169 into law in 19951.
While the law is an important step forward, it remains to be seen whether it reflects a true commitment by the government to listen to and respect indigenous peoples decisions about their future, or if it is simply a green-washing exercise aimed at encouraging investors hesitant about the ongoing social conflicts in Peru.
Like the Garcia administration before it, the Humala government appears to see the cause of indigenous discontent as a lack of understanding that can be resolved by increased state presence to convince people that development projects are good for them:
"With this law we want to recognize the importance of your voice and listen to it, and treat you like citizens and not like small children that are never asked or consulted about anything," said President Humala to an audience of indigenous peoples in Bagua when he enacted the law, requesting that people do not "abuse or manipulate the law," a veiled warning against using the law to block government projects.
First minister, Salomon Lerner Ghitis, said in an interview that when indigenous peoples are opposed to projects the government should "try to dissuade them, convince them... try to respect people with prior consultation, public audiences and experts with the capacity to explain things to the public."
The central question for indigenous peoples will be around implementation of the law and how the government meets some of the challenges involved in respecting peoples' right to free, prior and informed consent, such as those outlined in Amazon Watch's recent briefing paper, The Right to Decide. The vice-minister of Culture, Vicente Otta, recently announced that INDEPA, the government agency responsible for applying the consultation law, will be restructured with a larger budget to meet these challenges. Alberto Pizango, President of the national indigenous organization AIDESEP, has called on the government to establish a high-level commission to work with indigenous peoples to develop guidelines for the implementation of the consultation law and work towards reconciling the divisions between government and the country's indigenous peoples.
The real test for the law will be how the government responds to situations where indigenous peoples decide they do not want oil drilling in their territory, and choose to follow an alternative model of development, as in the case of the Achuar people in the Pastaza river basin who oppose exploratory drilling in Oil Block 64, currently operated by Canadian company Talisman Energy.
The new law highlights the importance that oil, gas and mining companies adopt policies to ensure that they are operating only with indigenous peoples' free, prior and informed consent not only to avoid the associated operational and reputational risks, but also to comply with a growing body of national and international legislation that recognizes indigenous peoples right to consultation and self-determination.
1 Peru's Supreme Court has emitted contradictory sentences about the application on the right to consultation in ILO 169, first ruling that the convention came into force when it was signed into law, but then clarifying that it only came into force once the Supreme court acknowledged it, a move heavily criticized by constitutional lawyers.