MAC: Mines and Communities

New Peruvian law on FPIC passed

Published by MAC on 2010-06-04
Source: CooperAccion, IPS, and others (2010-05-22)

Another country has made the move to enshrine the right to prior consultation for Indigenous Peoples (known more generally as free, prior, informed consent) into its law. 

This move has generally been welcomed, but as with other countries that have already taken this step - such as the Philippines - the devil may well be in the detail of implementation.

The passing of this law is timely as the year anniversary of the "Baguaso" June 5 approaches (see: http://www.minesandcommunities.org//article.php?a=9300) and Indigenous leader Alberto Pisango returns from exile to Peru.

 

ESPAÑOL

Peru: Is the Indigenous People's Consulation Law Any Good?

CooperAccion

22 May 2010

On May 19, the House of Congress approved the Law on the Right to Prior Consultation for Indigenous or Native Peoples with 62 votes in favour, 7 against and 6 abstentions, as recognised by the ILO Convention 169.

For the leaders of organisations that led the process, the result is positive. AIDESEP leader Saúl Puerta said that it was "an important step to regain trust and national reconciliation between the State and Indigenous Peoples." He further asked the executive government not to review or veto the law as this would confirm the government's neglect of the people.

For Congresswoman Marisol Espinoza, the law "is a historic milestone not only for the defence of their territory and dignity, but it goes further than that; fundamental rights are being respected. There is still a way to go and we need to advance in recognising the rights of Indigenous Peoples, but at least we are moving forward. "

One of the issues that the communities defended was that of consent. In Article 3 of the new law, the need to achieve consent between the State and Indigenous or Native Peoples, in regard to legislative or administrative measures that affect them directly, is incorporated, as required by the ILO Convention 169.

So what can we say about the brand new law? What is the assessment? Is the law any good? This will depend on many factors which we must not lose sight of.

In the first place, it will depend on the political will to bring out an adequate legal framework for the implementation of the law and the regulations that will allow for a meaningful consultation process for Indigenous Peoples.

A first test will be the enactment of the law and the drafting of its regulations. Community organizations and their allies must be alert and seek to intervene in this process, which can be as long and complex as the previous stage [1].

On the other hand, we need to follow very closely the messages that the extractive industries are disseminating. The comments of Ricardo Briceno, president of the CONFIEP, are worrisome. He states that "this law only rules over measures adopted by the State, not the private sector." "We are calm because the Mines and Hydrocarbons Law already includes consultation requirements that companies must do through public hearings with people in the interior part of the country" (Gestión 21/05/2010).

It seems that companies feel they are above everything, are shielded and will not accept anything new, much less a consultation process they do not control. We will have to be aware of the steps that follow so that the implementation of a true consultation process with Indigenous Peoples will finally be a reality.

[1] For example, the definition and adoption of the regulation of communities took two years.


Native Peoples' Right to Consultation on Land Use Enshrined in Law

Milagros Salazar

IPS

28 May 2010

LIMA - Indigenous peoples in Peru finally have a law that obliges the state to consult them about any project or provision that affects their territory or communities. But it will be difficult to implement, as the body charged with this task is in need of reforms, and additional legislation is needed before it can be fully enforced.

It took the single-chamber Congress 16 years to pass the law on indigenous peoples' right to prior consultation after the country ratified International Labour Organisation (ILO) Convention 169, which commits nations to protecting indigenous and tribal peoples.

Native peoples must be consulted in advance on any legislative or administrative measure, development or industrial project, plan or programme that directly affects their collective rights, according to the new law approved by the legislature on May 19.

The Peruvian Ombudsman's Office said the law is a momentous step in recognising indigenous peoples and institutionalising "intercultural dialogue between (native peoples) and state authorities."

The new law comes at a time when private investment projects are mushrooming in ancestral indigenous territories, generating a number of high impact social conflicts. The most serious took place Jun. 5, 2009 in the northern Amazon jungle province of Bagua, where 33 demonstrators and police were killed when the security forces clamped down on indigenous protesters.

Over 70 percent of Peru's Amazon region has been handed over as concessions to oil companies, while in the Andean regions licenses for mining projects are proliferating.

In 1994 Peru ratified ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries, which establishes in article 6 the right of native peoples to be consulted on matters affecting their territories and way of life.

One-third of Peru's population of 28.7 million are indigenous people. There are 7,515 recognised native rural communities, of which 6,067 are in the Andean highlands and 1,448 in the Amazon rainforest.

Indigenous organisations welcomed the new legislation passed this month and demanded that President Alan García sign it into law without any changes. The president has 15 days to approve laws voted by Congress or to return them with "observations" indicating his proposed modifications.

The response of business associations to the law has been lukewarm. The president of the National Confederation of Private Business Associations (CONFIEP), Ricardo Briceño, said it is not entirely satisfactory because it does not expressly ban indigenous peoples from exercising the power of veto.

Without question, "fulfilling the law will require effort from all sides in the dialogue process," Iván Lanegra, assistant director for the environment, public services and indigenous peoples at the Ombudsman's Office, told IPS.

Article 3 of the new law states that agreement or consent must be reached between the state and indigenous peoples in the consultation process. If that is not possible, the state is required to act to protect the rights of the native population.

The law also sets criteria for identifying indigenous peoples, and defines the stages that must be completed as part of the consultation process. In addition, it appoints the National Institute for the Development of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) as the government agency responsible for implementing and enforcing the law.

The Ombudsman's Office, which presented the bill to Congress in July 2009, after the tragedy at Bagua, says the law substantially reflects the original text it introduced, and that approval by the government is part of the commitments that the García administration made to native communities in the Amazon.

Lanegra said that INDEPA is in need of reforms because it lacks the authority, resources and capabilities to fulfil its new role.

The law will come into effect 90 days after its publication in the official gazette, El Peruano, so that there is enough time for "the government agencies responsible for carrying out the consultation processes to be provided with the necessary budget resources and organisational capabilities," the text says.

According to Lanegra, the Ministry of Energy and Mines is one of the bodies that will have to adjust most heavily to the provisions of the new law, because a number of its investment projects are located on indigenous lands.

The Muqui Network, a local non-governmental organisation (NGO) that works for sustainable development and community rights in mining areas, said that the public hearings currently held by the ministry as a form of community participation in mining projects are no substitute for the consultations with indigenous peoples stipulated in the new law.

It also said there are three basic conditions for the consultations: they must be held before the state has decided on the future use of indigenous territories; participation must be free and voluntary, with no pressure or abuse of power; and concerned parties must have access to full, comprehensible and relevant information with an inter-cultural focus.

Asunta Santillán, an expert on indigenous affairs with Law, Environment and Natural Resources (DAR), another local NGO, told IPS that indigenous peoples will have to be consulted on the forestry and environmental bills, as well as on the executive branch's plans to relocate people living in areas slated for investment programmes of national interest.

The head of INDEPA, Mayta Cápac Alatrista, told IPS that his institute is setting up a dedicated office to handle the consultation processes and enforce the law, which will need to be staffed by qualified personnel.

The institute will be in charge of coordinating the consultation processes, training the government officials and indigenous communities that will be participating, registering native organisations and representatives, and setting up a database with detailed information about the indigenous peoples.

"We are aware of the challenge and we know we must make changes in the institute," Alatrista said. He added that the biggest challenge will be persuading government workers to appreciate inter-cultural dialogue and to value diversity.

In April, Alatrista asked the cabinet to appoint nine indigenous representatives to INDEPA's 21-member board of directors, and that they be elected by the indigenous communities themselves, he said.

He acknowledged that the five offices INDEPA has opened in different regions since December are insufficient to oversee enforcement of the new law, and said the institute's annual budget will fall short.

INDEPA has 3.5 million dollars to fund all its activities for 2010, and it is still undetermined whether an additional amount will be allocated to carry out its new responsibilities under the law. "There is a great deal to be done," Alatrista said. (END)


Mining concessions cover 11% of total area in Peru

ANDINA

24 May 2010

Peru's Ministry of Energy and Mines (MEM) today reported that mining concessions cover 11 percent of the country, but exploration and exploitation projects only cover 1.2 percent.

According to Henry Luna, mining ministry's director of promotions, there is no significant evidence of mining activity throughout the country as it is mistakenly believed by opposition parties.

The maps of mining concessions issued by MEM's Mining Promotion Division, can be reviewed by any member of civil society and accessed through the ministry's website (www.minem.gob.pe).

He also said mining title holders may submit their Consolidated Annual Declaration (DAC) from the mine they operate or from any location with internet access. "Operators may report on investments, production and sustainable development activities that took place last year to benefit local communities", he added.

The information presented in the DAC is confidential and will enable the responsible entity to make statistics and maps in order to assess the economic impact of mining, royalties for each region and direct employment impact.


UN expert congratulates Peru for adopting a new law on consultation

United Nations Office of the High Commission on Human Rights

26 May 2010

The Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Professor James Anaya, notes with satisfaction the adoption of the "Law on the right to previous consultation of indigenous and tribal peoples as defined by the ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries" by the Congress of the Republic of Peru on May 19, 2010. "I believe that this represents a significant advance for the national legislation on matters relating to the human rights of indigenous peoples, which could set an important precedent and provide an example of 'good practice' for other countries in the region and in the world."

The Special Rapporteur urges the executive power to enact the law during the period stipulated by national law, and to implement this new legislation in a manner consistent with Peru's international obligations relating to the human rights of indigenous peoples.

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