MAC: Mines and Communities

Peru's President Garcia Criticized for Refusing to Sign Indigenous Rights Legislation into Law

Published by MAC on 2010-07-09
Source: Guardian, BBC, statements

On May 19 the Peruvian House of Congress approved the Law for Prior Consultation, and indigenous groups, national and international NGO’s, eagerly awaited and hoped that President Alan Garcia would pass the Legislation and make it Law. See:

However, a month later the President made 8 observations on the Law that if modified, would in fact neutralize it. Many fear that this response is a dangerous set back and could have serious consequences for the relationship between indigenous people and the State.



"More consultation, less conflict"

By José De Echave

La Republica (Peru)

29 June 2010

The title of this article was one of the slogans of the promoters of the Consultation Law. The phrase begs the question of how much trouble the country would have saved all these years, if it had a good consultation mechanism. The ILO Convention was ratified by Peru in 1994: it has been sixteen years and so far nothing.

On Monday 21 June, the President presented a set of critiques on the Prior Informed Consultation Law for Indigenous Peoples which was passed by Congress on the 19th of May.

There are eight comments submitted by the President that substantially modify the law that ends with neutralising it. One point is that the consultation process cannot limit or prohibit the State from taking measures in the interest of the nation. It further notes that the Consultation Law "involves the risk of delay or halting the development of the country."

These comments contradict the rights of indigenous peoples with vague national interest. It is worth noting that this argument is often used whenever communities demand the right to exercise consultation: "Why do small populations get to decide over projects which are of national interest?"

The big problem is that in a country like Peru, there are no public policies that clearly show that a given project responds to the "national interest." This is true and a common point for Inambari, Rio Blanco, Islay, the port of Ancon and hydrocarbon projects in the Danten del Marañón. In fact, one of the challenges is to endow ourselves with these instruments and one of them can be prior consultation.

Consultation can and should mean several things: agreements, intense democratic dialogue between government, communities and companies, capacity building, learning, etc. It is a whole package that should be taken into account in a comprehensive manner for the benefit of communities and of course for the benefit of the whole country.

In that package there is the possibility that the country, including the indigenous peoples, can decide when and under what conditions we should have, for example, mining or oil projects; when a given ecosystem should be preserved for the environmental services that it can provide; when and how a given infrastructure construction should be carried out etc. All of this implies an intense dialogue that will help strengthen democratic practices and eventually define a favourable climate for everyone, including investors.

Apparently, the government intends to continue to exempt plans, projects and programs considered of "national interest" from consultation processes. His interpretation of legislative or administrative measures should be read as narrow and strictly vertical. Furthermore, it appears that no lessons have been learned from years of conflict that could have been channeled through institutional and democratic means, as those proposed by the Consultation Law

The President's comments represent a dangerous setback that will affect relations between the state and indigenous peoples. We will have to wait and see how Congress reacts and how community organisations defend what they have been advocating.

The Environmental Issue is Again on Alert


6 July 2010

In the last two weeks, Peruvians have found, yet again, the weakness of our environmental institutions and the enormous risks that are constantly present in different parts of our territory.

First, the oil spill in the Marañon river in the district of Urarina in Loreto, then the collapse of the tailings dam in the district of Huachocolpa in Huancavelica, which is causing terrible contamination of three rivers in the area on top of economic and health impacts of the communities.

The worst part is that on top of these facts, the oil and mining companies involved have a long history of irresponsible behaviour. Pluspetrol has caused several similar spills in recent years and for years, has dumped 100% of untreated production water in a lot 1AB and 8 into the Corrientes River causing serious contamination problems. Allegations of Achuar communities, protective measures, temporary closures and finally an agreement, The Dorissa, signed between the company, communities and the state, have not been able to prevent further spills.

In Huancavelica the situation is severe. The communities claim that in recent years there have been a series of accidents involving the same company together with other companies operating in the region and there are more than 70 environmental mining liabilities that no one owns up to and are not remedied. The main river basins that cross Apurímac are being affected while nobody does anything. Now, in a specific case it is accepted that an adequate control and prevention policy was lacking, but then who takes responsibility?

What to do? Is the Ministry of Environment merely a painting on the wall? These unfortunate events highlight the need to review criteria, public policy and break the prevailing pattern of private self-regulation. The companies, especially in the extractive industry, have constructed a discourse aiming to point out that its own regulations are the ones that give way to completely safe and clean operations. Not so. You can not trust the mechanisms of control of the companies that, in general, rely on their economic interests. It is necessary to strengthen public regulation and control mechanisms, more so in high-risk operations.

This is a fundamental issue due to the growing presence of mining and hydrocarbon activities. Hopefully the authorities react, do something and ignore absurd accusations against environmental leaders and priests who denounce these acts and call, rightfully so, for the protection of ecosystems and people.



Peru's tribal groups chide president for vetoing rainforest law

Alan Garcia blocks legislation that would have helped halt oil, gas and mining projects on land belonging to indigenous people

By Roy Carroll

The Guardian

24 June 2010

Indigenous groups in Peru responded with fury after the country's president, Alan Garcia, blocked a law which would have helped them stop oil, gas and mining projects on tribal land.

Amazon tribes and other groups said the intervention would hinder efforts to protect their way of life and to control the multibillion dollar rush for natural resources in the rainforest.

"It's clear that Garcia doesn't understand or respect the rights of native communities," said Edgard Reymundo, a congressman from the Bloque Popular political group.

In May, congress passed a bill codifying parts of the UN convention on indigenous peoples in an attempt to calm tension after clashes between indigenous groups and security forces last year which left more than 30 dead.

Garcia, a former leftist-turned free market champion, said the legislation would damage the economy and refused to sign it. He sent it back to congress earlier this week on the eve of a recess, meaning it will be months before it can be revived.

The president said the bill would slow down Peru's development of minerals and hydrocarbons.

"The law approved by congress goes beyond the UN convention because it doesn't just include tribal communities in the Amazon but also peasant communities," he said. "So if you want to build a road or gas pipeline and the locals say 'no', then there is no road or electricity."

The legislation could restrict his successors and give some Peruvians more rights than others, said the president. "Peru is for all Peruvians ... and, for there to be democracy, we can't place limits on future legislatures or governments."

Campaigners said his decision showed disregard for indigenous rights that have already been slowly eroded.

"In the last few years things in Peru have been getting worse," said David Hill, a researcher with Survival International. "The legal security of indigenous ownership of their territories has been gradually undermined, and Peru's government has carved up more and more of the Amazon between oil and gas companies, without the consent of local people. It's a grim situation."

Foreign demand for its mineral wealth has made Peru one of the world's fastest-growing economies. Chinese, European, north American and Brazilian companies have opened offices in the capital, Lima.

But critics say the boom has not eased widespread poverty nor benefited Amazon or Andean communities, who find their lands scarred by pipelines, pits and earth-moving equipment.

Indigenous leaders said the bill's rejection meant they would not be consulted about - let alone given the chance to veto - big projects. "This means the government can do what it wants on ancestral indigenous lands, even if tribes disagree with an extractive, transnational company going into our communities to deforest Mother Earth," said a statement from Aidesep, an umbrella group representing Amazon tribes.

Relations with the government have been toxic since security forces in helicopters and armoured vehicles clashed with spear-wielding protestors in Bagua last year, a bloody affair which left both sides nursing wounds.

Similar tensions have affected neighbouring countries. In Ecuador, the Shuar and other indigenous groups have donned war-paint and blocked highways over water rights and oil and mining plans. The country's president, Rafael Correa, a leftist who once enjoyed indigenous support, stoked anger by calling them "infantile minorities".

Last year in Chile, the Mapuche seized forests, sabotaged equipment and attacked police in a dispute over land rights, prompting the then president, Michelle Bachelet, to invoke Pinochet-era anti-terror laws.

Clashes between indigenous Bolivian groups and pro-business governments paved the rise of Evo Morales, Bolivia's first Aymara president.

Peru leader rejects indigenous land rights law

By Dan Collyns

BBC News

24 June 2010

President Alan Garcia of Peru has refused to sign a law that would give indigenous people more power to stop oil and mining projects on their lands.

The law was approved by Congress, but Mr Garcia said he could not let indigenous communities stop development that would benefit all Peruvians.

Native groups and opposition politicians have criticised the move.

Last year, more than 30 people died in clashes between police and Amazon tribes opposed to oil projects.

Indigenous groups say they have seen little benefit from the rush to develop Peru's rich natural resources, and they fear their traditional ways of life will be destroyed.
'No limits'

Mr Garcia sent the law back to Congress just days before MPs begin a two-month recess at the end of this week.

He said it went too far, as it did not rule out the possibility that native groups could veto infrastructure projects.

Human rights groups say that in approving the bill, Peru's Congress was complying with UN and International Work Organisation treaties which the country had signed.

But Mr Garcia said he could not allow native communities to hold back Peru's economic growth.

"If you want to build a road or gas pipeline and the locals say 'no', then there is no road or electricity. Peru is for all Peruvians and for there to be democracy we can't place limits on future legislation or governments," he said.

China's demand for raw materials has helped to make Peru one of the world's fastest growing economies, and there have been billions of dollars of investment in mining and the emerging oil and gas sector.

But President Garcia's aggressive drive to attract foreign investment has caused massive social friction.

Poor communities in Peru's Amazon jungle and Andes mountains say they are often neither consulted nor informed about big projects on their ancestral lands, and they say they do not see the benefits of the billions of dollars of profit from Peru's natural resources.

Mr Garcia's critics say his refusal to sign means the chances of resolving the country's many conflicts will be thwarted.

Peru's President Garcia Widely Criticized for Refusing to Sign Indigenous Rights Legislation into Law

Amazonwatch press release

23 June 2010

Lima, Peru - President Alan Garcia refused to sign a historic new law that would have recognized Peru's international obligation to consult with indigenous peoples before proceeding with resource extraction projects that affect them. Despite broad appeal from the International Labor Organization of the United Nations, human rights groups and indigenous organizations, Garcia sent back the law to Congress with his objections just before the deadline late on Monday night.

"President Garcia has missed a huge opportunity to show Peruvians and the world that his government is willing to respect indigenous peoples rights and willing to bring Peru closer in line with international norms," commented Atossa Soltani, Executive Director of Amazon Watch. "Garcia has taken another step backwards in repairing relations with indigenous peoples and demonstrated yet again his administration's deeply troubling policies towards the country's original inhabitants."

The consultation law, which was approved by the Peruvian Congress on May 19th, would require that affected indigenous peoples be consulted in advance of any legislative or administrative measure, development or industrial project, plan or program that directly affects their collective rights.

Garcia objects to the idea that indigenous people can disagree with the government and proposes that the law should be modified to allow the government to override the result of any consultation process. In his letter to the Peruvian Congress he also says that national and regional development projects should be excluded from consultation for fear of holding up infrastructure development and that the law should not apply to "la comunidad Andina" - the indigenous peoples of the Andes. To justify his refusal to honor Peru's international obligations and the result of months of hard work and dialogue, Garcia invokes baseless fears arguing that meaningful prior consultation with indigenous peoples would delay or prevent the economic development of the country.

Alberto Pizango, the President of AIDESEP, the country's national indigenous organization commented that "the consultation law would be a positive step forward though it is still insufficient in protecting our peoples' rights." He further stated that indigenous peoples are not opposed to development but rather object to the "current model of development that destroys the rainforest for profit of a few individuals and companies. We seek development in harmony with the environment."

The law would have brought Peru closer to long overdue compliance with its international legal obligations. In 1994 Peru ratified International Labor Organization (ILO) Convention 169 concerning Indigenous and Tribal Peoples which establishes the right of indigenous peoples to be consulted on matters affecting their territories and way of life. In February 2010, the ILO recommended that the Peruvian government "suspend the exploration and exploitation of natural resources which are affecting [indigenous peoples]" until the government has developed consultation and participation mechanisms in compliance with ILO 169. In a meeting just last week the ILO reaffirmed its concerns over the Peruvian government's failure to implement ILO 169 and urged Garcia to sign the consultation law as an important measure to come into compliance with the treaty.

Last year thousands of indigenous people across the Amazon protested new laws aimed at "development" of the Amazon, which were passed without consultation. The protests came to a tragic end when a police clampdown in Bagua left 34 dead and over 200 injured. As part of the reconciliation process the government committed to developing a consultation law in consensus with indigenous and civil society groups. However the Garcia government continues to ignore indigenous rights and undermine the reconciliation process. The oil and gas leasing arm of the Peruvian government has opened dozens more new oil and gas concessions on indigenous lands without meaningful consultation, and President Garcia last week signed an agreement with Brazil to build six mega-dams in the Peruvian Amazon, many of which will flood indigenous lands in order to sell electricity to Brazil.

"This law represented a critical opportunity for the Peruvian government to demonstrate that it is serious about resolving the kind of social conflict that led to the tragedy in Bagua last summer," stated Gregor MacLennan, Peru Program Coordinator for Amazon Watch. "Now that President Garcia has refused to bring Peru into compliance with the UN Convention, it is up to the legislature to ensure that Peru respects indigenous rights. It has already been sixteen years since Peru ratified ILO 169 - how much longer do indigenous peoples need to wait?"

Under the Peruvian constitution, the legislature has the power to enact laws that the president refuses to sign and can override his objections by majority vote. Indigenous and human rights groups are urging Congress to act quickly to make this law official so that it can be implemented without delay and in full consultation with the country's indigenous peoples, as a much needed sign of Peru's commitment to respecting, protecting and fulfilling the rights of indigenous peoples.

Britton Schwartz (in San Francisco) +1-415-487-9600
Gregor MacLennan (in Peru) +511-993-916-389

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