To six years of the approval of the Law of the right to the previous consultation in Peru, the balance regarding the rights of the indigenous towns in the extractive sector is not very encouraging.
Peru: the previous consultation in the extractive sector continues without guaranteeing the respect to the indigenous rights
Writers: Shia Inguil and Magali Zevallos
The previous consultation, it has become a formality to obtain or to grant the authorization of beginning of the investment project. In this context, according to Iván Lanegra, ex vice minister of Intercultural, the consultation is not allowing to the indigenous towns, to identify the opportunities and options that guarantee its rights. For Ana Leyva, director of CooperAcción, the previous consultation should allow to the indigenous towns to guarantee the validity of the collective rights as the election of options of development of the land, the territory, and the access to natural resources. But it is not happening in the extractive sector.
The rights of the indigenous populations during many years were not contemplates in the decisions of the State. This situation has generated a social conflict. At the moment, in spite of the fact that a Law of previous Consultation exists for six years, its implementation continues been a pending task, because it is not adjusted to the standards settled down by the Agreement 169 of the ILO that the Peruvian State ratified 23 years ago.
IN WHAT FLAW THE PREVIOUS CONSULTATION?
From the 2013, so far, they have been carried out 38 processes of previous consultation: 4 national consultations, 13 in hydrocarbons, 12 in mining,1 in energy, 1 in hydroways (for judicial command) and 7 in protected natural areas.
The report “Consúltame de verdad. Aproximación a un balance sobre consulta previa frente a las extractivas” (Consult me for real. Approach to a balance about previous consultation in front of the extractive companies) affirms that of the 12 processes of previous consultation carried out in the mining, only 3 arrived to the final stage of dialogue, and that the time average of the consultations has been of 2 months. In addition, in 4 of the cases, the stages of informative meeting and that of evaluation was carried out in 1 day.
38 processes of previous consultation have been developed: 4 in national consultations, 13 in hydrocarbons, 12 in mining, 1 in energy, 1 in hydroways and 7 in protected natural areas.
It also points out that in the consultations made, it has been reached agreements that finish being actions that are part of the functions or obligations of the State, settled down in the law. It also notices that the agreements don’t have as objectives to prevent affectations to the collective rights of the indigenous towns. For example, of the 12 processes of analyzed consultations, in 5 processes it was determined that the company most respect the environment and the company most complete its environmental commitments. Also, in 6 cases that the State fulfills to investigate and to control the activities of the project.
According the law, a consultation process concludes officially when the consulted measure is promulgated. It is with the promulgation of this measure that you can be sure of the execution or not of the agreements reached in the consultation process. In accordance with the report ¿Cómo va la aplicación de la consulta previa en el Perú?: Avances y retos 2017. Centro Amazónico de Antropología y Aplicación Práctica, CAAAP. (How the application of the previous consultation goes in the Peru?: Advances and challenges 2017 of the Amazon Center of Anthropology and Practical Application, CAAAP.) “If you don´t have the promulgation of the consulted measure, you cannot control how they are come implementing these agreements”. Until last September, only 19 processes had this measure; that means that in the other processes the agreements cannot be controlled.
But beyond this mistake, we can find many others. For instance, those that were related to the database of the Indigenous Towns and the demands that have arisen before their omission. Juan Carlos Ruíz, lawyer of the Institute of Legal Defense, affirms that the consultations around extractive projects are the most uncertain subject, due to they have been guided to guarantee the economic pattern.
CONFLICTS AROUND THE DATA BASE
The process for the creation of the Data Base of Indigenous Towns began in 2012, in charge of the Vice ministry of Interculture. This entity was questioned by not publishing the Data Base in that moment, and to retard the application of the right to the consultation. The case more representative was the community San Juan de Kañaris, located in Lambayeque, where the project Cañariaco of Canadian Company Candente Copper was the reason of a social conflict for a self-consult that the community carried out and that it was not recognized by the Peruvian State. At the present time it exists an accusation for violation to the right to the consultation in the Inter American Commission of human rights.
Five years after initiate the identification process, the Ministry of Culture points out that the database of Indigenous Towns is in constant bring up to date”. At the moment it has registered more than 5000 communities, but it is still a long road to travel, because it is considered that the rural and native communities are more than 10,000.
FLAWS IN THE STAGES OF THE CONSULTATION
According to the Article 8 of the Law of the Right to the Previous Consultation, there are 7 stages that should be completed during the consultation processes: Identification of the legislative or administrative measure that should be consultation object, identification of the indigenous or natives towns or to be consulted, publicity of the measure, information about the measure, internal evaluation of the institutions and organizations of the indigenous or natives towns about the legislative or administrative measure that affect them directly, dialogue process and decision.
Gladis Vila, native leader that participated actively in the processes of previous consultation at National Level as part of the National Organization of Indigenous and Amazon Women from Peru, makes emphasis in the asymmetry of how these women are developing. She mentions that in the stage of publicity, the measure is diffused by Internet, service that many indigenous communities don’t have. She stands out the difficulty that the natives have to understand the technical language in the informative stage and in the dialogue. “It is almost impossible for the indigenous towns, because we are oral cultures, to be able to read or to understand when they are spoken in normative or juridical terms that are very unaware to our reality.”
Ruiz sustains that the dialogue conditions are not the appropriate ones. Therefore the consultation finishes being an imposition disguised of contract – agreement between the communities. “The consultation is a dialogue mechanism, but if there are not dialogue conditions there is a brutal asymmetry of power. For example, the indigenous towns ignore the true impact of some project in their territories. Then behind a consultation, there is not a legitimate dialogue, but the imposition of the strongest side, the State, in front of small communities”.
It is almost impossible for the indigenous towns, because we are oral cultures, to be able to read or to understand when they are spoken in normative or juridical terms that are very unaware to our reality
CONSULTATIONS IN HYDROCARBONS PROJECTS
For the sector of hydrocarbons, the only measure consulted until the moment has been the Supreme Ordinance that approves the subscription of a license contract for the exploration and exploitation of a certain lot. For Leyva the consultation should be centered in the clauses of the contract, but it doesn’t happen in the consultation processes. “The problem with the consultation processes is that the general impacts of the activity with hydrocarbons are discussed, that hinders to achieve agreements that then can be incorporate to the contract”.
About this, in 2014 the Teller of the United Nations at the moment, James Anaya, took a critical posture on how the consultation processes for the extractive sector was being executed. He said that a necessary condition for the respect of the rights of the indigenous towns in the context of extractive projects was its participation in the process of strategic planning in the sector, what would include the selection and division of lots for the exploitation of hydrocarbons”. That doesn’t happen so far.
The consultations about hydrocarbons began in 2013, with the consultation of the Lot 169 in Ucayali that was difficultly questioned, so much for indigenous organizations of the region, like for the own teller of the UN. For the regional organization AIDESEP, the process that was given between PERUPETRO and the indigenous towns Asháninkas, Amahuacas and Yaminahuas was in an accelerated way that made difficult that the indigenous towns could understand the consult.
Next year, the report “La situación de los derechos de los pueblos indígenas en Perú, en relación con industrias extractivas”, ( “The situation of the rights of the indigenous towns in Peru, in connection with extractive industries”), pointed out that: “The representatives of the indigenous communities that participated in the process (Lot 169) they didn’t have legal or specialized advice that was independent of the State, as the Teller of the UN recommended it to correct the imbalances of power among the parts dealers”. The article adds that the agreements don’t contain the essential elements to be considered as equal agreements, as the mitigation of the impacts and the effective participation of the indigenous towns in the development of the project. In spite of the evidences, this consultation has been qualified as a “successful” process by the organisms of the State.
Another consultation whose critics have transcended was the Lot 195, also in Ucayali. There were problems in the dialogue process, it was not clear for the communities what was consulting and the involved entities didn’t stop the process. The Lot 192 (before lot 1AB), located in Loreto, it also had an openly questioned consultation. With most of communities of the lot there were not agreement. Also the solution and prevention topics were not incorporated in the contract. The consequence has been that after two years of operation, they have taken place, until January of 2018, 40 spills of petroleum. For that reason, the communities of the Lot claim that of taking place new contract it should be carried out a new consultation in order to consider similar situations.
MINING CONSULTS: A GREETING TO THE FLAG
The consultation in mining began to be implemented at the end of 2015. “Meanwhile, from 2012 the Ministry of Energy and Mines (Minem) it has granted 159 licenses for new processes of mining exploration and at least 69 for the mining exploitation. None of these decisions involved a process of previous consultation, although the Defender of the Town and the defenders of the indigenous rights affirmed that at least 15 of these projects would have a clearing impact on territories or indigenous communities”, according to the investigation La consulta previa en Perú, avances y retos, de Cynthia A Sanborn Verónica Hurtado and Tania Ramírez,(The previous Consultation in the Peru: advance and challenges, of the authors Cynthia A. Sanborn, Verónica Hurtado and Tania Ramírez).
The first previous consultation in mining was carried out among the company Focus SAC and the rural community Parobamba (Cusco) on the project mining Aurora. The process was denominated by some organizations like a greeting to the flag”. The measure already had the environmental certification (Study of Environmental Impact – SEI and authorization of the use of the superficial land approved, as it has happened with the other consultations) and, therefore, it didn’t allow that the impacts of the project, the measures of prevention and mitigation, and the use of the communal property were consulted; already everything was defined.
What happened in this first process has been seen in practically all the processes of the sector where the measure to consult has been the authorization of beginning of mining activities of exploration and exploitation. Leyva says: “What they consulting is operative decisions, when all the important permits have already been granted and when already anything can´t be changed”, because the measure doesn’t allow them to consult the use of the territory or the SEI or the closing plan. That means, all the important decisions in the cycle of the project.
In mining, it has been 12 consulted projects, of which 8 didn’t pass through by the dialogue stage. Of the other 4 processes, 1 of them, the exploration project Apumayo, didn’t end up having agreements, but in all ways the State solved in favor of the company granting the authorization of beginning of mining activities of exploration, like it is pointed out in the Resolution N° 0010-2017-MEM/DGM.
OPENED JUDICIAL PROCESSES DUE TO OMISSION OF CONSULTS
We can say that the consultation has not meant an obstacle for the extractive sector, as managerial sectors affirmed it. The experts affirm that at the present time the consultation is a step that valid this activity, and even so, it continues refusing this right.Many communities demand the development of consultations mainly referred to the grant of mining concessions and the approval of the SEI of extractive projects, administrative acts that are not consulted. Of the 9 unfounded or unjustified declared consultations in the Judicial Power, 7 are on grant of mining concessions, 1 about the grant of a lot (116) and another on Project Line of Transmission 220 kW Moyobamba-Iquitos.
Ruiz says that “Every year 5 000 mining concessions are sent, half of the territory of rural communities have mining concessions, these concessions are sent without the knowledge of the proprietors of the land. INGEMMET (Institute Geologic Miner and Metallurgist) gives the concession to a holder, but it never notifies to the community. That imply that the community doesn’t receive a notification. But it receives a piece of newspaper in Spanish that nobody reads. The communities never know. Also the term to refute is of 1 year. The way of how the mining concessions are sent it is secret, hidden to the communities”.
The cases of Atuncolla and Jatucachi, Puno, are two cases against mining concessions that have failed in favor of the population. In Second Instance the Civil Room of the Court of Justice of Puno prohibited to INGEMMET send mining concessions without previous consultation in the case Atuncolla. On the other hand, in the case of Jatucachi there were 13 the mining concessions that were declared null for not having been consulted. These cases have been passed to the Constitutional Tribunal using an extraordinary resource.
CONGRESS DOESN’T FULFILL THE AGREEMENT 169
To six years of the validity of the Law of Consultation the Congress of the Republic doesn’t even approve the modification of its internal regulation, in order to that the legislative initiatives that affect the collective rights of the indigenous towns are subjected to consultation process before being approved. We can say that one of the main powers of the State, it is not fulfilling the Agreement 169, and since it continues approving laws without consulting and that they violate the rights to this sector. For instance, the case of the law which declared of priority and national interest the construction of highways in frontier areas and the maintenance of trails in the department of Ucayali” (Law N° 30723), in zones of protected areas and territories inhabited by towns in voluntary isolation.
According to the congress member Tania Pariona, of Nuevo Perú: “We have presented a project of Legislative Resolution to reform the articles 5 and 77 of the Regulation of the Congress that establish that all project should go by constitutional revision, besides the international treaties and the agreements that Peru has subscribed. Also these articles have constitutional character, that´s why to omit them would mean a violation to the juridical system of our country and the treaties of which we are part”.
The Congress of the Republic is not executing the Agreement 169, it continues approving laws without consulting.
On the other hand, the Congress had a setback in Previous Consultation. In September 2016, Úrsula Letona, the congress member of the Fujimori party presented the Project N° 213/2016-CR that modified the article 2 of the Law of Consultation. What proposed Letona was that in the cases that the indigenous or native towns has authorized the realization of any type of formal economic or productive activity expressly through contract, agreement or effective formal previous agreement, the previous consultation doesn’t proceed.” That mean to omit the consultation, becoming extensive to all its stages.
Although the project was retired by the own author, she still defends its proposal, arguing that it will allow economic benefits to the communities if they allow that the mining companies can carry out their activities. “The Project mentioned to mining projects that already had agreements with the communities, where the consultation files were stagnated. To those communities it will allow to execute support agreements to productive processes, work for taxes, improvement of capacities and of public services in charge of the State; according Letona.
What the Congress member didn’t have clear is that the previous agreement is given on agreements or contracts taken place between the company and the community for the use of the superficial land and the previous consultation about the decisions that the State takes in relation to a project (certifications, permits or authorizations).
To have a legal mark doesn’t guarantee the execution of the Law of Consultation. The principal mistake is related with the imposition of the interests of the extractive sector over the interests and rights of the indigenous towns. The execution of the standards settled down in the Agreement 169 of the ILO continues constituting a challenge for the Peruvian State.