Individual Case (CAS) - Discussion: 2024, Publication: 112nd ILC session (2024)

Written information provided by the Government

Article 1. Peoples

Articles 2 and 33. Coordinated action

• 4 meetings with organizations enabling consensus on the proposal;
• 9 meetings providing further information on the proposal;
• 17 instances of technical assistance regarding multisectoral validation of the proposal;
• 6 meetings with the National Strategic Planning Centre to assess the public issue;
• deliverables 1, 2 and 3 approved by the National Strategic Planning Centre.

• consolidation of the involvement of 45 entities;
• 56 meetings with 37 entities to review proposals;
• presentation of proposals for services during the fifth meeting (6 and 9 May) with 8 indigenous organizations and 33 public entities;
• identification of 61 services and preparation of 102 proposals for review.

• GTT No. 1: Access to comprehensive/intercultural healthcare – 16 strategic actions completed, 7 in progress;
• GTT No. 2: Indigenous development/economy – 5 strategic actions completed, 15 in progress;
• GTT No. 3: Access to intercultural education – 9 strategic actions completed, 12 in progress;
• GTT No. 4: Rights of indigenous women – 7 strategic actions completed, 1 in progress;
• GTT No. 5: Legal certainty regarding land – 4 strategic actions completed, 15 in progress.

Articles 3 and 12. Human rights. Indigenous women

• implementation of 11 training workshops for public servants on the subject of sexual violence (September–December 2023);
• updating, translation (into six indigenous languages) and dissemination of messages on the prevention of sexual violence in three regions (Loreto, Ucayali and Puno) (December 2023);
• “Meritorious cultural personality” award for six indigenous women for their contributions to activism (September–December 2023);
• “First national meeting of indigenous women entrepreneurs” to strengthen their role in recovery, held on 11–14 December 2023 with 53 women (Awajún, Ashaninka, Bora, Kichwa, Matsigenka, Quechuas-Secoya and Shipibo-Konibo) from 15 regions;
• “National meeting of indigenous women leaders” to present the women’s entrepreneurship network with a view to capacity-building, held on 14 December 2023 for women, including 18 women leaders from 9 regions (Pasco, Cusco, Ayacucho, Loreto, San Martín, Amazonas, Puno, Huancavelica and Áncash);
• the creation of the “National network of indigenous, native and Afro-Peruvian women entrepreneurs” (Ministerial Decision No. 086-2024-MC) in order to facilitate entrepreneurial access to the labour market;
• 19th edition of the training course for interpreters/translators (August–September 2023, Tarapoto, San Martín); for the first time, this catered for 50 women from 15 regions speaking seven languages;
• incorporation of women who completed the 19 training courses in the National Register of Interpreters and Translators of Indigenous or Native Languages at the Ministry of Culture.

Article 3. Human rights and fundamental rights

Deceased defender	Orphaned minor(s)	Current status
Edwin Chota	Andi Chota	Incorporated – 17 April 2023
Leoncio Quintisima	Leoncio and Leyner Quintisima	Incorporated – 1 June 2023
Jorge Ríos	Robert, Mario, Luis and Junio Ríos	Judicial declaration of presumed death in progress
Francisco Pinedo	Elmer, Aníbal y Diana Pinedo	Renewal of ID in progress

• There were 339 registered risk situations involving 599 rights defenders. Of these persons, 397 (66.28 per cent) self-identified as belonging to the following peoples: ShipiboKonibo (74), Kichwa (65), Ashaninka (42), Tallán (41) and Kakataibo (38).
• These 397 persons indicated that they faced one or more types of risk, such as threats to safety (59.43 per cent), assaults (16.67 per cent), destruction of property (5.98 per cent), defamation (4.89 per cent) and harassment (4.71 per cent).
• As regards risk situations for self-identified indigenous rights defenders, 170 were linked to activities such as illegal logging (87), illicit drug trafficking (74), illegal mining (36) and land trafficking (35).

• Installation of seven regional round tables for the protection of human rights defenders (Madre de Dios, Ucayali, San Martín, Loreto, Amazonas, Junín and Piura) with a view to territorial coordination in relation to risk situations connected with illegal activities, with the participation of the Government and social actors.
• Two technical round tables in Ucayali regarding: (i) titling of community territories, with the participation of the authorities and indigenous peoples (19 March 2024); and (ii) socio-economic development in conjunction with communities (21 March 2024).
• Seven meetings with the authorities and social organizations in five regions (Piura, Iquitos, Chachapoyas, Satipo and Huánuco) in order to coordinate multi-level forums for the protection of rights defenders.
• Six high-level public visits (with the participation of the Ministry of Justice, Ministry of the Environment and Ministry of Culture) in Ucayali (3), Huánuco (1), Piura (1) and Madre de Dios (1), with a particular focus on visits to the Flor de Ucayali and San Francisco communities, for fact-finding purposes in relation to risk situations.
• Implementation of a pilot project to identify risk situations, linked to the design of an early warning system to prevent the negative impact of illicit drug trafficking (Flor de Ucayali community, 28 February 2024).
• Participation in three Congress initiatives: (i) prevention session relating to deforestation caused by illicit activities (8 September 2023); (ii) public hearing on issues faced by rights defenders in Ucayali (23 October 2023); and (iii) decentralized meeting of the budget committee to reinforce the budget for the intersectoral mechanism (24 October 2023).
• Presentation of the project for strengthening the intersectoral mechanism by the Ministry of Justice, Ministry of Culture and Ministry of the Environment (26 February 2024).
• Three training activities: (i) workshop on human rights defenders facing risk situations, for 95 police officers from 6 regions (Madre de Dios, Ucayali, Loreto, Huánuco, Junín and Amazonas); (ii) workshop on the intersectoral mechanism, for 126 leaders from 53 organizations in 7 regions (San Martín, Ucayali, Huánuco, Madre de Dios, Loreto, Pasco and Amazonas); and (iii) course on the role of rights defenders and police protection with regard to risks, for 115 police officers from 7 regions (Madre de Dios, Ucayali, Loreto, Huánuco, Junín, Amazonas and San Martín).

• Mr Quinto Inuma Alvarado (leader of the Kichwa community, Santa Rosillo de Yanayacu): the Ministry of Justice managed: (i) the transferral of authority to the community; (ii) the exhumation of remains; (iii) the safeguarding of the life and integrity of relatives and other leaders; (iv) the implementation of actions, together with the Ministry of Women and Vulnerable Populations and the Ministry of Health, to provide psychological support for relatives/the community; and (v) the provision of assistance for relatives.
• Mr Santiago Contoricón Antúnez (Ashaninka chief of the Puerto Ocopa-Junín community): the Ministry of Justice managed: (i) the provision of ombuds services for the relatives of victims; (ii) visits to the community and provision of information on the intersectoral mechanism and on recognizing relevant risk situations; (iii) the organization of an orphan scholarship at the Continental University (granted on 5 May 2023); (v) the granting of guarantees for relatives (19 May 2023); (vi) the provision of social assistance for relatives through the Juntos programme; and (vi) the follow-up of the case (Ministry of Justice–Ombuds Office).

• Five training initiatives for police officers: (i) a training course for trainers on human rights in relation to police work, for 25 police officers; (ii) a post-operation evaluation workshop for 40 senior officers holding the position of regional chief or chief of a provisional police structure (frente policial); (iii) a refresher programme on police interventions and operations for 11,000 officers and sub-officers; (iv) a seminar/workshop on the use of force and human rights during social unrest, for 60 general officers; and (v) interculturalism workshops for 446 police officers.
• Five programmes on human rights and international humanitarian law for the armed forces: (i) two basic programmes for officers and civilians; (ii) two advanced programmes for officers and civilians, technicians and sub-officers; and (iii) a programme for operational legal advisers. The armed forces’ Centre for International Humanitarian Law and Human Rights trained 1,094 members of the armed forces, police officers and civilians.
• Training workshops and conferences on interculturalism, human rights and standards on the use of public force by prosecutors, in accordance with the directive approved by Public Prosecutor’s Office Decision No. 534-2022-MP-FN.

Article 6. Consultation

• implementation of 95 consultation processes (83 concluded);
• submission of 166 requests for information to entities responsible for concluding agreements, and holding of 102 technical assistance meetings;
• implementation of the 2023 work plan and further follow-up actions;
• follow-up on 52 prior consultation processes (1,183 agreements concluded), of which 14 were related to protected natural areas;
• Follow-up on compliance with consultation agreements relating to Plot 192, in which the Ministry of Energy and Mining (Ministry of Energy) was involved:
  • strengthening of follow-up on prior consultation agreements by the “Technical roundtable for the prevention of unrest and for the communities of the ‘four basins’ group in the area of Plot 192 in the Loreto region”;
  • establishment of sub-working groups (education, health, housing and titling) and coordination for the fulfilment of agreements.

Articles 7 and 15. Consultation and mining projects

• participation of 16 entities: 5 ministries (Ministry of Energy, Ministry of Education, Ministry of Culture, Ministry of Transport and Communications, and Ministry of the Environment), 3 public bodies (National Service for State-Protected Areas, National Intercultural Health Centre, and National Forestry and Forest Fauna Service), 4 regional governments (Loreto, Cusco, Huancavelica and Ucayali), and 3 local governments (Ucayali, Manseriche and Nueva Requena), on matters related to natural protected areas, mining projects and hydrocarbon plots;
• implementation of 141 technical assistance actions related to prior consultation for 2,389 participants (865 officials and 1,524 inhabitants);
• management of 21 cases, of which 12 are related to prior consultation;
• capacity-building for 3,106 persons: 931 public officials, 1,118 indigenous/native inhabitants, and 1,057 other individuals;
• implementation of 11 online courses on the right to and process of prior consultation, through which 3,890 persons were trained, with a 12th course currently under way;
• development of a plan for the implementation of intercultural dissemination mechanisms on the status of prior consultation agreements.

Article 14. Land

• capacity-building for 32 indigenous leaders from Loreto and Ucayali;
• participation in dialogue forums and titling round tables convened by the regional agrarian directorates of three regions (San Martín, Huánuco and Ucayali);
• organization of coordination meetings with authorities to expedite processes for the physical and legal clarification of rights defenders’ cases in five regions (San Martín, Huánuco, Ucayali, Pasco and Loreto);
• provision of technical assistance to the regional governments of Ucayali, Pasco and Huánuco for the creation of “technical titling round tables”, in order to resolve disputes, and carry out processes for the demarcation and titling of land.

Articles 26 and 27. Education

• classification of 73,092 teachers according to level of native language proficiency, with the majority having an advanced level (39,493);
• issuance of 98 text titles in 14 native languages, and 305 library resources in 43 native languages for basic education;
• publication of 16 writing manuals and 9 vocabulary teaching resources as linguistic tools for teachers;
• drafting of a plan for teacher development in bilingual intercultural education in order to close gaps.

• allocation of vacancies for teachers in bilingual intercultural education in accordance with requirements;
• processes and necessary resources for the distribution of teaching materials.

Discussion by the Committee

• (i) “such consultations do not imply a right to veto, nor is the result of such consultations necessarily the reaching of agreement or consent” and
• (ii) “the obligation to guarantee adequate consultations lies clearly and explicitly with governments, and not with individuals or private enterprises”.

• (1) ensure that the resources and technical capacity are provided to ensure the operation of the mechanism for the protection of indigenous leaders who are human rights defenders;
• (2) take urgent steps to prevent, investigate and punish acts of violence against the indigenous population;
• (3) on the basis that the Convention requires good faith in consultations, we ask the Government to take immediate action to ensure effective consultation processes when indigenous peoples decide not to participate; and
• (4) we reiterate a request from the employers in the region to have a specialist on the Convention and, in this regard, we urge the Government to request technical assistance from the ILO to design a road map to enable it to make progress on compliance with the Convention.

• (1) protect the life, physical safety and psychological well-being of the relatives of all murdered indigenous leaders, including the relatives of the victims in Alto Tamaya-Saweto;
• (2) make available all necessary resources to ensure that all instigators and perpetrators of these murders of members of indigenous people are prosecuted and punished once and for all;
• (3) ensure that the protocol on prosecution action for the prevention and investigation of crimes against human rights defenders is provided with material, human and economic resources so that it can be applied not only in a reactive manner but also, in particular, in a preventive manner;
• (4) strengthen the mechanisms for protection of human rights defenders in terms of budget and intercultural adaptation;
• (5) carry out all necessary investigations and actions in relation to the reports of illegal logging and cases of forced labour under the habilitación system in the department of Ucayali;
• (6) guarantee the right of indigenous peoples to free and informed prior consultation;
• (7) take all necessary steps to move forward in the processes of identification, demarcation and regularization of lands traditionally occupied by the peoples covered by the Convention in the various regions of the country; and
• (8) amend the domestic legislation of Peru so that the indigenous peoples are granted ownership of their lands and not transfer of use, through the formalization programmes being implemented in the country.

Conclusions of the Committee

• undertake expeditious investigations into the allegations of violence and incitement to violence and ensure that the perpetrators and instigators of the murders of indigenous leaders in Alto Tamaya-Saweto are prosecuted and punished as a matter of utmost urgency;
• take all necessary measures to protect the life, physical safety and psychological well-being of the members of the families of the murdered indigenous leaders without delay;
• take, without delay, effective measures to prevent violence against indigenous persons and their defenders;
• take steps, in consultation with the most representative employers’ and workers’ organizations, to identify and address difficulties in the implementation of consultation processes with indigenous peoples, including in relation to the mining sector;
• provide information to the Committee of Experts on:
  • measures taken to identify, demarcate and regularize the lands traditionally occupied by the peoples covered by the Convention in the various regions of the country;
  • progress on the investigations into the complaints concerning illegal logging and the cases of forced labour linked to the habilitación system in the department of Ucayali;
  • the activities of the Standing Multisectoral Committee for the Application of the Right to Consultation, explaining the manner in which the aforementioned Committee follows up on agreements and takes action in cases of non-compliance with agreements concluded in the consultation processes;
  • how provision is made to secure the cooperation of the indigenous peoples in assessing the social, spiritual, cultural and environmental impact of mining exploration or exploitation projects which may affect their rights;
  • the criteria used by the Ministry of Energy and Mining to determine which indigenous peoples must be consulted with regard to a project; and
  • the measures taken to inform indigenous peoples regarding the importance of consultation and to promote their participation in these processes.

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

A Government representative stated that the Government of Peru had always demonstrated its willingness to engage in dialogue to find a solution to the justified claims of indigenous peoples, through dialogue mechanisms such as the National Coordination Group for the Development of the Amazonian Peoples, which included representatives of the Executive, the regional government authorities and Amazonian indigenous organizations. The National Coordination Group was responsible for, among other things, investigating and analysing the events at Bagua, revising and updating legislation on issues relating to the forest and its fauna, establishing a mechanism for prior consultations for the application of Convention No. 169, and drawing up the National Plan for the Development of the Amazonian Peoples. The Government affirmed its willingness to advance with investigations to establish political and criminal responsibility for the events in Bagua which had caused the deaths of 23 police officials and ten civilians, and the disappearance of a police officer. A number of investigative proceedings had been initiated under the auspices of the National Coordination Group, within the Executive, the Congress of the Republic and the Office of the Attorney-General, with the guarantees of due process normally expected in a State governed by the rule of law. The Congress of the Republic had also set up a Multi-Party Commission to investigate the incidents in Bagua which has already reported to Congress. Within the Office of the Attorney-General and the judiciary, proceedings were under way against senior officials of the national police and against indigenous persons in connection with various alleged offences. The State had provided legal aid for all persons being prosecuted in connection with the events in Bagua in order to safeguard their rights as citizens. The State guaranteed that the investigations and proceedings involving political, police and indigenous authorities would be objective and impartial, in accordance with the principles of due process and in order to ensure that the deplorable events of Bagua did not go unpunished.

The Government had undertaken action to bring its definition of indigenous peoples into line with that of the Convention. To that end, on 19 May 2010, the Congress of the Republic had approved the Bill on “the right to prior consultation of indigenous and original peoples, as recognized in ILO Convention No. 169” (“the Act on Prior Consultation”). The Act, as approved, had been submitted to the President for approval. It reflected the proposals of the People’s Ombudsperson and the agreements reached through consultations with representatives of indigenous peoples. The Act included a definition of indigenous peoples that was consonant with that of Convention No. 169, and included the following elements: the characteristics of the indigenous peoples in terms of their social institutions, cultural patterns and customs which distinguished them from other sectors of the national community; their identity by virtue of their direct descent from the original populations that inhabited the national territory; and their awareness of being a group possessing an indigenous or original identity.

The Act provided that the National Institute for the Development of the Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) was a technical body specializing in indigenous affairs under the auspices of the Executive. It was a multisectoral and cross-cutting body operating at all three levels of the Government, and headed by an indigenous leader in consultation with indigenous peoples.

With regard to the design of a dialogue and consultation mechanism, the Act provided that prior consultations should be held on any national and regional development plans, programmes and projects that affected the rights of indigenous peoples. It also established that the purpose of consultation was to reach agreement between the State and indigenous peoples or obtain the consent of those peoples with regard to the legislation or administrative measures that concerned them, through intercultural dialogue that guaranteed their inclusion in the decision-making process of the State and the adoption of measures that respected their collective rights. The Act had elicited a positive response from the most representative organizations of Peru’s Amazonian peoples. In addition, a number of sectors had specific dialogue and participation mechanisms, as for example in the environmental sector, the mining sector and the hydrocarbon sector. The process for citizens’ participation in those activities was implemented through consultation mechanisms that came into play during the development and evaluation of environmental impact studies and, once they had been approved, in the form of citizens’ monitoring and/or supervisory programmes.

Peru had made significant progress in social development and in combating poverty. Such progress had been possible as a result of the social policies implemented by the Government to promote productive employment and decent work, in accordance with the Global Jobs Pact and the ILO Declaration on Social Justice for a Fair Globalization, 2008. It was therefore particularly difficult to accept the fact that the Committee of Experts had recommended the suspension of activities to explore and exploit natural resources that affected the peoples covered by the Convention, thereby exceeding its mandate. Extraction activities had played a fundamental role in the social progress achieved, in the context of an international crisis. Their contribution had been particularly important in developing local economies and improving the living conditions of those living in the areas where the industries in question operated. Suspending exploration and exploitation activities would affect over 120,000 jobs, as well as the incomes that regional and local governments received as their share in the benefits of extraction activities.

The National Coordination Group had established a round table which had developed and approved by consensus a National Plan for the Development of the Amazonian Peoples, which envisaged positive measures for the development of these peoples in relation to such essential matters for their development as: property rights, bilingual intercultural education, the extension of coverage by the public health system, the participation of indigenous peoples in the management and benefits of natural protected areas and the sharing in the benefits from natural resources, the environment, and respect for the culture and collective knowledge of indigenous peoples among others. The plan was in the process of being implemented.

The property rights of indigenous peoples were inalienable in accordance with article 89 of the Political Constitution of Peru. Communities could assert their right of ownership or occupation before any administrative or judicial authority in the event of such rights being affected. There were a series of provisions to give effect to this right which were intended to determine the lands that were traditionally occupied by native and rural communities and to promote the formalization and grant title to the properties of indigenous peoples with their participation, so that they could assert their right of ownership or occupation before any administrative or judicial authority in the event of such rights being affected.

With regard to the adoption of educational measures to eliminate prejudices by the State in relation to indigenous peoples, action had been taken to ensure that the educational materials that were to be distributed and delivered for educational purposes contained information based on criteria of equity and inclusion relating to the societies and cultures of those peoples. The Ministry of Education published educational materials for initial and primary education in ten indigenous languages and in Spanish as a second language.

The Government and Peruvian society had made great efforts to achieve the participation of indigenous peoples in their representative institutions, making use of effective and systematic mechanisms for participation, consultation and dialogue and reaffirming their own identity as a multi-ethnic and multicultural nation.

The Employer members stated that the present case was one that exemplified how the ILO’s supervisory machinery should ideally function, and also demonstrated the importance of having a diversity of cases before the Committee. They noted that in the information it provided, the Government had directly addressed virtually all of the points raised in the Committee of Experts’ report, and the Committee’s conclusions of last year. With regard to the Act on Prior Consultation, they noted the following: (1) the Act’s definition of indigenous and tribal peoples was consistent with that contained in the Convention; (2) the Act laid down the right of prior consultations of indigenous and tribal peoples with respect to any legislative or administrative measure affecting them; (3) the consultations envisaged by the Act were to be held with a view to achieving consent on the measures proposed and, if agreement in this respect could not be reached, the Government was required to make a decision taking into consideration the rights of indigenous peoples; (4) the Act had to be interpreted in accordance with the provisions of Convention No. 169; (5) representative organizations of indigenous and tribal peoples had been consulted prior to the adoption of the Act on prior consultation; and (6) the drafting of the Act took into consideration several documents, including: the drafts presented by the Office of the Ombudsperson and parliamentarian groups (Bloque Popular, Nacionalista and Union por el Peru), the results of the Working Group No. 3 of the National Coordination Group for the Development of the Amazonian Peoples which was integrated by representatives of the Executive and indigenous Amazonian organizations, and the report on prior consultations prepared by the special commission established to study and recommend solutions for indigenous people’s issues. Although it was for the Committee of Experts to evaluate the conformity of the provisions of the Act with the Convention, they underscored that it was nevertheless important to recognize the actions taken by the Government and commended it for them. The Government had amply demonstrated its commitment to respond to the conclusions of the ILO supervisory bodies.

They noted that a number of actors and organizations had commented favourably on the Act. Several organizations, including the Inter-Ethnic Association for the Development of the Peruvian Rainforest (AIDESEP), the Peasant Farmers’ Confederation of Peru (CCP), National Agrarian Confederation (CCNA), the National Coordinating Committee for Communities Affected by Mining (CONACAMI) and the Confederation of Amazonian Nationalities of Peru (CONAP), all considered the Act on Prior Consultation an important achievement. The UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples commended the law’s adoption and considered that it could establish an important precedent as a best practice for other countries of the region and the world. With regard to the Committee of Experts’ request that the exploration and exploitation of natural resources be suspended until the peoples affected and covered by the Convention were consulted, the Employer members maintained that the Convention did not provide for or envisage such injunctive authority. Stating that injunctions of this nature held potentially serious consequences for a nation’s economic activity, in particular its ability to attract foreign direct investment, they stressed that this request of the Committee of Experts needed to be re-examined. The Experts needed to understand that the real issue was that economic activity resulted in taxes and revenues that supported the local communities. The conclusion of the Experts that economic activity should stop was not supported by the legislative history of the Convention and jeopardized foreign direct investment.

They recalled that Article 6 of the Convention was the principal clause concerning the right of consultation, and that the definition of the latter term had been extensively discussed in the deliberations preceding the Convention’s adoption. From the records of these discussions, it was clear that consultation did not equate to, or require, the consent of the parties being consulted. The record of the second round of discussions preceding the Convention’s adoption showed that the Employers’ group believed the term “consultations” to signify “dialogue, at least”, and the Office itself had stated that it did not consider the consultations referred to, to require the agreement or consent of those being consulted. In its observation, however, the Committee of Experts appeared to have interpreted the term so as to impose a more exacting requirement upon the Government beyond that envisaged by the Convention; the potential consequences of this interpretation would be discussed and examined by several of the Employer members in the course of the discussion.

The Worker members indicated that the discussion of this case formed part of the follow-up to the discussion held in 2009 and the serious incidents that had occurred in Bagua, leaving 33 dead. These incidents had been related to the adoption by the Government of decrees affecting the rights of indigenous and tribal peoples to lands and to natural resources. The decrees were not in conformity with the provisions of Convention No. 169, which called for consultation with the peoples concerned, through appropriate procedures, and in particular through their representative institutions, whenever consideration was being given to legislative or administrative measures which might affect them directly. Following his visit to the country, the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples had also confirmed the seriousness of the situation. Following the incidents of 2009, a commission had been established to investigate the violence that had occurred in Bagua. Nevertheless, there remained the greatest confusion as to the functioning of the commission, and particularly with regard to its impartiality. Although a report had been published, it had not shed light on those directly responsibile, nor had it been signed by the representatives of indigenous peoples.

In this context, the indigenous peoples had called for the adoption of legislation requiring the State to consult them. On 19 May 2010, the Parliament had approved a Bill on prior consultations, which appeared to contain an exhaustive list of the principles to be followed to achieve consultation within the meaning of the Convention and could therefore serve as a first step in the improvement of relations. However, neither the Committee of Experts nor the Conference Committee had yet examined the legislative text in question, despite the commitment given by the Government to provide information on the measures taken to bring the national legislation into conformity with the Convention. The Conference Committee was therefore not able to express an opinion on whether or not the Act on Prior Consultation of May 2010 was in conformity with the Convention, both in terms of its scope of application and in relation to the protection provided, consultation procedures and the concept of “land” covered by Article 13 et seq. of the Convention. The Act needed to be in conformity with the definition of indigenous peoples, but also with the fact that these peoples “owned” the lands with which they had a special relationship. The Government had also undertaken to prepare and adopt a plan of action, in consultation with indigenous organizations, as indicated in the conclusions of the Committee the previous year, which referred to the establishment of mechanisms for permanent dialogue between the Government and Amazonian indigenous peoples and a multisectoral commission which would constitute another dialogue mechanism. Nevertheless, one year later, no plan had been adopted and the ad hoc dialogue body had not had any tangible effects.

The action taken by the INDEPA also raised problems in view of its lack of knowledge of the problems and the lack of representation of indigenous peoples within it. In July 2009, the INDEPA, despite the fact that it had an essential role to play in the application of the law and the promotion of indigenous peoples, had engaged in acts of political interference in the operation of the Amazonian organization AIDESEP with a view to obstructing its action. These allegations of partiality were damaging to the Institute and could only jeopardize the application of the law once it had been adopted. It also appeared that the AIDESEP had not been consulted concerning the project to relocate Amazonian peoples, even though this project endangered the social, political and economic integrity of Amazonian peoples and communities. Moreover, issues of relocation were covered by Article 16 of the Convention. These flawed consultations concealed major economic interests. The Ministry of Energy and Mining was continuing to grant permits for the exploitation of hydrocarbons without any consultation and contrary to the Act on Prior Consultation. Over recent weeks, 25 new oil and gas exploitation zones had been granted, mainly in Amazonia.

In conclusion, the Worker members indicated that, even if the Act on Prior Consultation constituted progress, it was necessary to remain cautious and the Committee should not reduce the pressure exerted on the Government. In practice, the Act still has to be approved by the President. In addition, the Act did not take into account the recommendations of the Committee of Experts relating to the suspension of concessions in indigenous lands, did not deal with the repeal of the previous legislation, nor of compensation for acts that were contrary to the Convention. It was therefore important for the Act to be examined by the ILO before its signature by the President. Doubts remained concerning the Government’s real political will to comply with prior consultation procedures, particularly since several agreements concluded between the executive authorities and the organizations of Amazonian indigenous peoples had, in practice, not been supported by the executive authorities in Congress. An effective framework for collaboration with the INDEPA was essential to give effect in practice to the obligations deriving from the Convention. For that purpose, the composition of the INDEPA would need to be reviewed to ensure that it effectively represented the interests of the peoples covered by the Convention. In that respect, the Government could benefit from ILO technical assistance.

A Worker member of Peru observed that the tragic events that had occurred at Bagua had been the result of the failure to give effect to the Convention, as reflected in the eight points emphasized by the Committee of Experts. A true and impartial investigation into everything that had occurred in Bagua had not been carried out. The body entrusted with the investigation had not been able to issue an objective report in view of the refusal by the Government’s representatives to accept any responsibility on the part of the legislative and executive authorities. She added that the Government had not prepared any plan of action beforehand in consultation with the representative organizations of indigenous peoples. The discussions referred to by the Government in the context of the dialogue round tables did not amount to an adequate response. They consisted of incomplete dialogue which included the Amazonian people, but not the Andean peoples.

With regard to the INDEPA, she noted that the necessary steps had still not been taken for its reform so as to allow dialogue concerning long-term policies and plans of action with the participation of indigenous peoples. It was not composed of real representatives of indigenous peoples. Its bodies were bureaucratic and did not include consultative mechanisms, and its officials lacked knowledge of indigenous peoples. The INDEPA supported the establishment of a parallel board of directors organized to hinder the functioning of AIDESEP; the lack of impartiality by the body would have serious consequences for the application of the law.

The Act on Prior Consultation adopted by Congress on 19 May 2010 was a positive step obtained as a result of internal and international pressure, but it still had not been officially approved. It was regrettable that so many years had elapsed without the adoption of the consultation machinery envisaged in the Convention. There were serious doubts concerning the real commitment to give effect to the provisions of the Convention respecting consultation. There also remained many serious situations of conflict relating to the significant increase in the exploitation of the natural resources in the lands occupied by Andean and native communities, in relation to which they had not been consulted. Some 72 per cent of the Amazonian territory had been granted under concession for the exploration and exploitation of hydrocarbons, but the current participation mechanisms did not amount to real consultation. Progress needed to be made in the implementation of the recent Act on Prior Consultation and in the application of all the stages of consultation. Nor had legislative measures been adopted to guarantee the participation of indigenous peoples in the benefits from mining, oil and gas and compensation for the damage caused by such activities. Nor had the question of the lack of formal land title been resolved. The Government had not adopted educational measures to eliminate prejudice against indigenous people and the lack of indigenous teachers was a matter of concern.

Another Worker member of Peru stressed the importance of freedom of expression and the guarantees that were afforded by the rule of law. He confirmed that the Government had continued to hold dialogues with apus (tribal chiefs), non-governmental organizations and peasant farmers. He highlighted the importance of the judiciary carrying out its work to investigate the deaths of indigenous peoples and police staff, and to investigate the disappearances. It was important that the legislative authority carry out its work regarding the official approval of the Act on Prior Consultation. He said it would be advisable to broaden training for peasant farmers and indigenous peoples on their rights and obligations in order for them to be able to decide on their future democratically and in a sovereign manner.

The Employer member of Peru provided detailed information on the national legislation relating to the right to consultation. He explained that, although it was the State that granted the concession for exploiting natural resources, the title to the concession did not confer ownership of the land on the enterprise or holder of the concession, nor did it authorize them to begin operating. Before any exploration or exploitation could start, the holder of the concession should reach an agreement with the owner of the land. In the case of a concession located on community land, the Constitution guaranteed that peasant and indigenous communities had the autonomous right to use the land as they saw fit, within the framework of the law. There were a number of national laws and regulations that protected the rights and customs of indigenous peoples as well as an official standard for the protection of the environment. He described the integrated system for assessing environmental impact, which had standardized and transparent criteria, and procedures to ensure that the proper participatory channels were used. Moreover, with the new Act on Prior Consultation, the country could definitely be said to have the highest standards for consulting indigenous peoples in accordance with the terms of the Convention. In the case of the mining and energy sector, the existing standards required that, before any such activities could be started, it be ascertained whether the interests of the indigenous peoples inhabiting the area directly concerned by a project might be affected, so that any concerns regarding any possible social, economic, environmental or cultural impact could be examined and taken into account. The speaker felt that the Committee of Experts’ observations were inappropriate, given that the country’s standards complied amply with the objectives of the Convention.

He concluded by stating that indigenous communities enjoyed the economic benefits accruing from the exploitation of natural resources by virtue of a levy, i.e. the share of State income deriving from the economic exploitation of those resources that local and regional governments were entitled to, irrespective of any compensation that enterprises might pay the owners for the use of their land.

The Government member of the Bolivarian Republic of Venezuela, spoke on behalf of the Government members of the Committee, Member States of the Group of Latin America and the Caribbean States (GRULAC). He cited the progress that had been made in ensuring that the Convention was applied, which had led to the drafting of a Development Plan for the Amazonian Peoples in which they participated fully, and the approval by Congress of the Act on Prior Consultation establishing the requirement that the indigenous peoples be consulted in advance so as to obtain their agreement or consent to any national or regional development plans, programmes or projects affecting their rights. He hoped that the conclusions to be adopted would take into account the discussion that had been held, without overlooking the new information, data and arguments put forward by the Government. In conclusion, he reiterated his firm hope that the Committee of Experts would confine itself to the explicit mandate it had received from the Governing Body.

The Worker member of Paraguay expressed his solidarity and committed support for the indigenous peoples and peasants of Peru, and expressed serious concern about the problems in applying the Convention. He said that the General Confederation of Workers of Peru (CGTP) and federations of peasants and indigenous peoples had repeatedly denounced the increase in conflicts in indigenous and campesino areas, and that such conflicts were closely related to access to, and control of, natural resources. In addition, the Government persisted in applying systematically a vertical administrative framework to Amazonian and Andean territories, which did not provide any guarantees of environmental protection. He pointed out that 72 per cent of the Amazonian area was dedicated to exploiting hydrocarbons, which meant that it was strategically and politically important to have a mechanism for the active participation of indigenous peoples and peasants relating to such activities. He regretted the fact that current legislation only provided for administrative and information measures, which did not in any way fulfil the obligation of consultation set out in the Convention. Given the risk of a resurgence in social conflicts related to the exploitation of natural resources because of lack of prior consultation, he requested that such obligation of consultation be implemented in practice as soon as possible.

The Employer member of Mexico argued that the Committee of Experts had exceeded its mandate. He explained that he had been the Employer spokesperson during the discussions that led to the adoption of Convention No. 169 and that he knew well the spirit of the provisions. It was inaccurate that consultations had to achieve agreement and it was incorrect to interpret that it was possible to require a hold on or suspension of economic activities. Article 6 of the Convention did not have, and never had, a binding nature. The Committee of Experts should not be able to change the meaning of the provisions of Conventions. He concluded by declaring that he felt that the Government was adopting a legislative package appropriate for implementation of the Convention.

The Worker member of the Bolivarian Republic of Venezuela highlighted the importance of ancestral rights of indigenous peoples as native peoples. She recalled that 70 per cent of the country’s population had its ancestral roots in indigenous communities. She requested that the Government acknowledge the right of Peruvian indigenous peoples to maintain their culture and traditions. She urged the Government to enact the Bill on the right to prior consultations, end indiscriminate over-exploitation of natural resources, put an end to the persecution of Andean and union leaders and guarantee the right of indigenous peoples to mandatory consultation on decisions in which they had a say.

The Employer member of Colombia stated that only five of the provisions of the Convention related to labour issues and that the other topics included were outside the ILO’s competence. There were many regional and international instruments, as well as specialized organizations, to guarantee the protection of indigenous peoples. The ILO should limit itself to the field of labour. He expressed his concern that the Committee of Experts wished to introduce an injunctive measure to suspend economic activity that did not exist in the Convention. He also pointed out that there was no justification in the Convention for a need to reach agreement through consultations.

The Worker member of France responded to certain statements of the Employer members by recalling that Convention No. 169 was not the only Convention in which the ILO had addressed questions of civilization in close synergy with the United Nations. The Convention had been adopted by the Conference, and it was an international treaty that, once ratified by a member State, had to be implemented in its entirety. As regards the calling into question of the Committee of Experts’ mandate and impartiality, it should be recalled that the interpretation of the text of a Convention was indispensable in order to clarify how its objective might be effectively attained. It should therefore be stressed that the Committee of Experts had not exceeded its prerogatives. The speaker emphasized that the word “consultation”, as reflected in the text of the Convention, implied that consultations had to be undertaken in good faith, that is to say taking into account the views expressed. In the case under discussion, however, the Committee of Experts considered that the Government had not conformed to the objective of the Convention. He expressed the hope that the Act on Prior Consultation, referred to by the Government, would resolve the problem. However, the fact that three-quarters of the country had already been handed over for exploitation was a source of concern. The value of the territories went far beyond their market value. The discussion of this case revealed two conflicting ideologies: on the one hand, a capitalist approach, and on the other, a philosophy of sustainable development.

The Employer member of Ecuador expressed his concern at the interpretation of Article 6 of the Convention. The Convention did not authorize indigenous or tribal groups to set up parallel legislative bodies with the power to establish national standards or the right to veto legitimate measures taken by the national authorities when acting within their sphere of competence. He recalled the debate that had taken place when the Convention was being drafted, when the Workers’ group presented an amendment to replace the term “consult” by “obtain the consent of” which was not accepted; that meant that the outcome of consultations was not binding. The spirit of the Convention was that the opinion of indigenous peoples should be sought when a government measure, or any matter stemming from the public authorities, might endanger the traditions and culture of their peoples. There was no way that this could be understood as opening up the possibility of their preventing or opposing categorically, irrespective of the will of the rest of society, a particular development model or projects going beyond the specific interests of those communities. The consultations should also serve to determine whether the groups wished to participate in, or stay out of, projects being undertaken in the proximity of their areas of interest and, should they decide to participate, what form that participation should take. That, however, did not imply that they were empowered to take decisions in the place of the duly authorized national bodies. He regretted that the Committee of Experts had gone beyond its mandate by requiring the suspension of projects relating to the exploration and exploitation of natural resources.

The Employer member of Spain pointed out the progress made by the Government, including the Act on Prior Consultation. As for the discussion on the concept of consultations, he stressed the importance of respecting the rights of indigenous and tribal peoples to land, respect for the environment, the search for sustainable and harmonious development and the importance of corporate social responsibility, but he indicated that the concept of consultations could not engender the notion of a veto. He felt that it was inappropriate to consider that the consultations provided for in the Convention had a binding nature.

The Government representative welcomed the opinions and comments given on the progress that had been made. She said that the role of the INDEPA had changed because, at the request of leaders of indigenous peoples, it had been placed under the purview of the Presidency of the Council of Ministers as of February 2010. It was now a specialized technical body that carried out its functions in a multi-sectoral and cross-cutting manner at all levels of Government. She said that an apu (tribal chief) would be appointed to head the INDEPA; consultations were under way with indigenous groups to that end. She also said that the National Coordinating Group had prepared a National Plan for Amazonian Development, comprising ministries, regional governments and two representative organizations of Amazonian peoples: AIDESEP and CONAP. She described the measures being taken to fight discrimination and racism and the new resources being allocated to education in rural areas.

She said that a source of constant concern was the fact that some of the benefits derived from extracting natural resources were granted to the peoples and communities where such activities were undertaken. Six types of concessionary payments had therefore been created for the various types of extraction activity. She said that, during 2009, US$1.2 billion had been paid in concessionary payments. She concluded by reaffirming her commitment to continue ensuring a different future for members of Peru’s indigenous communities.

The Employer members thanked the Government for the information it had provided during the discussion, noting that the Committee of Experts would need to assess the actions mentioned by the Government with respect to the Act on Prior Consultation and would indicate in its nextreport any possible flaws or shortfalls. While it typically took governments years or decades to act in response to observations, the Government of Peru had taken prompt action within a year and should be commended. They noted that no person or institution was infallible and that, based on the testimony and evidence presented, it would be prudent for the Committee of Experts to reconsider its conclusions with respect to the interpretation of certain provisions of the Convention that had been addressed by Employer members.

The Worker members considered that the Employer members had unjustly challenged Convention No. 169 and that their discourse on treaty interpretation could not hide the lack of any real arguments on the substance of the case. Yet this was a very serious case from which lessons could be drawn for the entire region. The recently adopted Act on Prior Consultation might be the first step towards the amelioration of relations which were currently characterized by violence. However, certain questions remained unanswered: the exact circumstances of the serious incidents in Bagua; the conformity of the Act with the Convention; the composition and impartial operation of the INDEPA; the repeal of previous laws; and the right to compensation for victims who had suffered from the application of earlier legislation. The Government had taken a first encouraging step and, in order to prove its good will, should accept a technical assistance mission of the Office at the earliest opportunity so that the Committee of Experts had all the necessary information it needed to be able to answer the questions raised.

The representative of the Secretary-General stated that she wished to provide some clarifications. The word “consultation” was probably found in every ILO instrument; it was the very backbone of international labour standards, since all Conventions and Recommendations included a provision on consulting with workers’ and employers’ organizations, or required consulting with “workers and employers” concerned or groups of persons concerned, such as persons with disabilities. However, this common, very important concept had to be construed within the overall context of the instrument in which it was placed. Consultation was an obligation irrespective of the language used, such as the expression “shall consult”. Article 6 of Convention No. 169 highlighted this term more than most provisions, and to interpret it correctly, one needed to look at the Article in its entirety, and not just part of it. Paragraph 2 of Article 6 set out that consultations carried out in application of the Convention had to be taken in good faith, and in a form appropriate to the circumstances, with the objective of achieving agreement or consent. This provision did not require that consultations had to reach agreement, but meant more than merely consulting and moving on. One had to consult in good faith and with the objective of achieving consent. Both the English and the French versions of the text were clear. They did not compel agreement or consensus. The same understanding was reflected in the Committee of Experts’ observation which was being discussed in this case.

She further stated that, as an ILO Convention, Convention No. 169 could not be disowned; it was a revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107). The ILO was the first organization with a Convention on indigenous peoples and it was the only organization with a binding instrument on indigenous peoples. These elements of clarification were provided while recognizing that this remained a sensitive and controversial issue.

The Employer members thanked the Office for the clarifications but indicated that the word “consult” had a different meaning in English than in French, where it had a stronger connotation. Leaving this distinction aside, it was clear that failure to consult should not be taken to mean that one might stop economic development. To this end, when they questioned the Committee of Experts as to the true meaning of the Convention, they were referring to its injunctive aspects.

The Worker members stated that in adopting these conclusions they had demonstrated great flexibility. They hoped that the Government would accept the technical assistance offered by the Office.

Conclusions

The Committee noted the statement by the Government representative and the discussion that followed. It noted that it had examined this case in 2009, and that the Committee of Experts, referring to the conclusions of this Committee, had called on the Government to take a range of measures of a legislative, institutional, awareness-raising and educational nature.

The Committee noted the Government’s indication that the Congress of the Republic of Peru had adopted on 19 May 2010, an Act on the Right to Prior Consultation of Indigenous or Original Peoples as recognized in ILO Convention No. 169, containing, inter alia, provisions to identify the peoples concerned. The Government also provided information regarding Presidential Decree No. 022-2010 endowing the INDEPA with the status of a specialized technical body. The Government further provided information on the work of the four dialogue round tables established in June 2009 with the participation of Amazonian peoples, which, inter alia, covered investigations into the Bagua incidents, and the formulation of a development plan for the Amazon area. It also referred to access of indigenous peoples to education, measures to eliminate prejudices in respect of indigenous peoples as well as initiatives aimed at improving their conditions.

The Committee welcomed the Government’s acknowledgment of the importance of consultation and the consequent adoption by the Congress of the Republic of the Act on Prior Consultation, and trusted that it would be promulgated rapidly by the President of the Republic. The Committee urged the Government to provide full information to the Committee of Experts on the promulgation and implementation of the Act to enable it to assess compliance with the provisions of the Convention. It urged the Government to ensure that the new Act on Prior Consultation was signed and implemented and to ensure, if needed, that transitional measures were adopted, in accordance with Articles 6, 7 and 15 of the Convention, as discussed in the Committee. The Committee also recalled the need for coordinated and systematic action to protect the rights of indigenous peoples, as provided for in Articles 2 and 33 of the Convention, which required state institutions that enjoyed the trust of indigenous peoples and in which their full participation was ensured. The Committee noted the information provided that the Act on Prior Consultation attributed a central role to the INDEPA as the technical body specialized in indigenous affairs and accordingly considered that the reform of this body, with the full participation of the representative organizations of indigenous peoples, was necessary to ensure its legitimacy and a genuine capacity for action and to secure the application of this important Act.

The Committee noted the formulation of a development plan for the Amazon area which, however, would not cover indigenous peoples of the Andean region. It also noted that progress needed to be made in relation to the formulation and implementation of plans of action to address in a systematic manner the pending problems relating to the protection of the rights of the peoples covered by the Convention, as requested by the Conference Committee and the Committee of Experts. It emphasized the need to ensure that these plans of action were developed and implemented with the participation of the representative organizations of indigenous peoples, in accordance with Articles 2 and 6 of the Convention.

The Committee requested the Government to provide full information in a report to be submitted for examination at the forthcoming session of the Committee of Experts in reply to the matters raised by this Committee and the Committee of Experts, including detailed information on the promulgation and implementation of the new Act on Prior Consultation and related transitional measures, the implementation of the development plan for the Amazon region, as well as information on the effect of Ministerial Resolution No. 0017-2007-ED setting admission criteria on bilingual teacher training. The Committee encouraged the Government to avail itself of the technical assistance of the Office to ensure that adequate progress on the implementation of the Convention was made.

The Worker members stated that in adopting these conclusions they had demonstrated great flexibility. They hoped that the Government would accept the technical assistance offered by the Office.

Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

A Government representative, Minister of Labour and Employment Promotion, referring to the observations contained in the 2008 report of the Committee of Experts on the application of Convention No. 169, beginning with Article 1, said that Peru had ratified the Convention on the assumption that there was compatibility between its provisions and the concept or legal definition of “peasant-farmer or native community”, which was the term used in Peru’s Constitution and legislation. Nevertheless, the Congress of the Republic had prepared a draft Act entitled “Framework Act on indigenous or original peoples of Peru” which included the peasant farmer and native communities in question, as well as isolated indigenous groups, defining the term “indigenous or original peoples” with an exact transcript of Article 1 of Convention No. 169.

With regard to the second observation of the Committee of Experts, regarding Articles 2 and 33 of the Convention, he recalled that the Government had established a range of institutions to administer programmes affecting the people concerned. He stated that, in 2005, Act No. 28495 had created the National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) as a participatory body, with its own administration and budget, mandated to propose policies and programmes for indigenous peoples’ development. As it had only recently been established and its competences would require a certain amount of consolidation, the speaker indicated that the Government would request technical support from the ILO subregional office for the Andean Countries for institutional strengthening of INDEPA.

He underlined that Peru was making progress towards decentralization and transferring powers to regional and local levels of government through policies of dialogue, promotion and capacity-building for public and private bodies to benefit Andean, Amazonian, Afro-Peruvian and Asiatic Peruvian peoples, as evidenced by the Organic Municipalities Act No. 27972 of May 2003, that established coordinating councils, whose members included representatives of native people located in the relevant jurisdictions, and created participatory control mechanisms. In that regard, he also noted that various acts had provided for affirmative action concerning the political rights of indigenous peoples, stipulating, for example, that at least 15 per cent of candidates on electoral lists for municipal and regional assemblies should be drawn from indigenous peoples.

In order to resolve complaints from indigenous Amazonian populations and create a space for dialogue with their representatives – which were the subject of the third observation of the Committee of Experts concerning Articles 2, 6, 15 and 33 of the Convention – various legislative decrees specifically mentioned in the Committee’s report had been repealed and a Multisectoral Committee had been established on 20 April 2009, to deal with matters relating to the proposals made by the Inter-Ethnic Association for the Development of the Peruvian Rainforest (AIDESEP) regarding repeal of various legislative decrees, a measure which had already received preliminary approval in Congress.

In addition, local coordinating councils had been created and other consultation mechanisms were in place to encourage public participation and include peasant-farmer or native communities in processes affecting the environment, in accordance with the consultation procedures set out in Article 6 of Convention No. 169. However, despite new legislation, the speaker said that it was necessary to establish standards to apply across the country and in all sectors in order to guarantee the right to participation and consultation at all levels of government, standards which he hoped Congress would approve shortly. In that regard, attention should be drawn to the plan for citizens’ participation, intended to involve communities on an organized basis in public monitoring and vigilance programmes with regard to the social and environmental impacts of implementing projects affecting the exploitation of natural resources when they threatened the members, institutions, property, work, cultures and environment of the peoples concerned. In this respect, he cited the cases of the Río Blanco project in the Piura region and the exploration of the Condohuain hills to exploit their mineral deposits.

Lastly, the Government representative referred to the events of the previous weekend in the Bagua area of the Cajamarca region. Although the events and those responsible for them were being investigated, he stated that, in the Government’s view, the protests and demonstrations had resulted from the action of uncontrolled groups that, twisting the complaints of native communities, had attempted to disrupt oil pumping and endanger gas piping facilities, which would have had serious consequences for millions of Peruvians. However, he concluded by saying that he regretted the outcome and that the Government remained open to dialogue.

The Employer members thanked the Minister of Labour and Employment Promotion of Peru for personally attending the Committee’s session and for the information provided. They noted that it was the twentieth anniversary of the adoption of Convention No. 169, but that it was only the fifth time that the application of this Convention had been discussed in this Committee. The Employer members highlighted the importance of this discussion for Peru and for the other 19 countries that had ratified the Convention, as well as for the region generally. It was the first examination of the application of Convention No. 169 by Peru in this Committee, though the Committee of Experts had already made eight observations since the ratification of this Convention by Peru in 1994. The Committee of Experts continued to regret the Government’s failure to provide the information requested. In addition, the Government had not responded to the communications submitted by the workers’ organizations. The Employer members noted the problems the Government had encountered. They understood that a 60-day state of emergency had been declared in May 2009 in areas of the Amazon and that there had been recently a confrontation in Bagua. They stated that there appeared to be a very sensitive situation on the ground, but highlighted that the purpose of the Committee was to review the application of the Convention with reference to the Committee of Experts’ report.

The Employer members acknowledged that there existed practical difficulties in the application of the Convention in Peru. They noted that the Government’s obligation, among others, to establish appropriate and effective mechanisms for the consultation and participation of indigenous and tribal peoples regarding matters affecting them, was a cornerstone of Convention No. 169. The Convention provided that consultation and participation of indigenous and tribal peoples was an essential element in ensuring equity and guaranteeing social peace through inclusion and social dialogue. However, even if there was some degree of general participation in Peru and ad hoc consultations on certain measures, the Committee of Experts had considered it insufficient to meet the Convention’s requirements. The Employer members noted that there remained concern and confusion about the legislative criteria identifying the Peruvian peoples covered by the Convention, and that without such criteria the difficulties in its application in practice would persist. The Committee of Experts had requested the Government to clearly define the coverage, in consultation with the representative institutions of the indigenous peoples, and to ensure that all peoples referred to in Article 1 of the Convention were covered. However, the Employer members considered that, in terms of the Convention, the coverage was open to interpretation, since neither “indigenous” nor “tribal” peoples were defined in the instrument. In this regard, they encouraged the Government to consider the definitions provided in the ILO thesaurus when responding to the Committee of Experts. They also highlighted that, without resolving the problems of coverage, there would continue to be problems of application of Articles 2 and 33 of the Convention. The Government should clearly address why some peoples remained not covered and provide the rationale so that this information could be considered by the Committee of Experts.

The Employer members further noted the problems of application of Articles 6 and 17 (consultation and legislation). Here again, they highlighted the obvious linkage with Article 1, because the Committee of Experts had urged the Government to take steps, with the participation of the indigenous peoples, to establish appropriate consultation and participation mechanisms and to consult the indigenous peoples before adopting measures. Regarding the problems of application of Articles 2, 6, 7, 15 and 33 of the Convention, the Committee of Experts had referred to numerous serious situations of conflict, to which the Government had not responded. The Employer members were not in a position to examine the legislative information provided by the Government to this Committee, but encouraged the Government to provide the information to the Committee of Experts on an annual basis and to consider a plan of action to address the application problems with clear reference to what was happening on the ground and to identify urgent situations connected with the exploitation of natural resources, which could endanger the persons, institutions, property, work, culture and environment of the peoples concerned. The Employer members considered that this was a serious case of non-reporting and it also appeared that the Convention had not been fully implemented. They wanted the Government to take immediate positive steps to provide the Committee of Experts with the information they were seeking, so that a proper assessment of the issues could take place.

The Worker members noted that Peru had ratified Convention No. 169 in 1994. The Committee of Experts had commented on the application of this Convention in 2006 and 2008, but the Government had never been called before the Conference Committee on this matter.

They recalled the particular context of this discussion. Following a violent conflict in the northern part of the country, Bagua, in connection with the suppression of an action led for a few days by 30,000 people, which had caused 33 deaths on 5 June 2009, marches in solidarity with the peoples of Peru had taken place in many countries in support of indigenous movements. In addition, the Government’s action had been firmly condemned by the Inter-American Commission on Human Rights and the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous and Tribal Peoples who had called on the Government to avoid in the future any forms of violence and to apply or adopt measures to protect the rights and fundamental freedoms of the indigenous and tribal peoples. The Worker members recalled that the Committee of Experts had already highlighted in 2008, various situations of grave conflicts attributable to an escalation of the exploitation of natural resources in the territories traditionally inhabited by indigenous peoples.

They underlined the legislative problems arising from this case. As other Andean countries, Peru had a population in which Indian communities remained important. These communities, however, were isolated from power and were not consulted when rights, which concerned them were at issue. In addition, even though Peru had formally recognized in its Constitution its multi-ethnic and multi-cultural character, there was a real gap in action between the legislature and the executive. Four decrees, among which was Decree No. 1090, derogated from the laws providing for restrictions on social order at the mining of raw materials which had prompted the Inter-American Commission on Human Rights to recall the role of the judiciary in the settlement of disputes and compensation of damages caused to the indigenous and tribal peoples. Legislative Decree No. 1090 of 28 June 2008, known as the Forestry Law, had modified the Forestry Law of 2000 in view of adapting it to the Free Trade Agreement signed with the United States. This decree had been suspended recently by the Congress of Peru for 90 days. The conclusions of the Conference Committee would therefore be of high importance.

The Worker members then turned to the detailed analysis of the situation of the indigenous peoples of Peru undertaken in the report of the Committee of Experts. One of great difficulties, the source of legal insecurity and of abuse, was the question of the definition in the Peruvian legislation of the peoples to whom the Convention had to apply. The legal notion of “indigenous peoples” was not defined in the Constitution and several terms were utilized to refer to indigenous peoples, thus creating a certain and detrimental ambiguity. The Committee of Experts had several times asked the Government, in vain, to establish, in consultation with the representative organizations of indigenous peoples, unified criteria for the peoples who might be covered by the Convention.

As part of the application of both Articles 2 and 33 of the Convention, the Government had to establish institutions or other mechanisms, provided with necessary means to accomplish their functions, in order to administer programmes involving the peoples concerned. The Worker members stated that the creation in 2005 of the INDEPA as a participatory organization with administrative and budgetary autonomy granted had not seemed to have generated the desired guarantees. The diversity in the representation within the organization prompted the imposition of decisions of the State and the INDEPA had not had real power. Therefore, the Worker members stressed the request of the Committee of Experts for the Government to create, with the participation of the indigenous peoples, truly effective institutions.

To conclude, the Worker members regretted that the Government had made very few efforts to implement the Convention and to resolve, through consultation with the peoples concerned, the numerous situations of grave conflicts, attributable to an escalation of the exploitation of natural resources in the territories traditionally inhabited by indigenous peoples.

The Government member of Colombia thanked the Minister of Labour and Employment Promotion of Peru for the information provided to the Committee. He stated that the Government of Colombia recognized the Government’s will for dialogue and encouraged the social actors to reinforce such dialogue and to use it as an efficient means to achieve a better understanding and to reach agreements. Finally, the speaker invited the ILO to consider favourably the Government’s request for technical assistance.

The Worker member of Peru stated that the non-observance of the Convention by the Government had serious consequences for the indigenous peoples of her country. The current situation offered a disheartening image of violence. On Friday 5 June, the police had resorted to violent action against protests carried out for two months by the communities located in the Bagua locality, Amazonas Department. The protests of the indigenous communities were aimed at demanding the repeal of legislative decrees which had been issued by the Government without previous consultation and stripped the communities of their legitimate rights to water and land, laws which flagrantly violated Convention No. 169 ratified by Peru. The armed intervention to resolve the indigenous strike had led to the death of at least 30 indigenous persons and 23 members of the police force.

Over 49 to 55 million hectares of the Amazon had been subjected to concessions. Thus, 72 per cent of the territory had been given away by the Government for the exploration and exploitation of hydrocarbon, contrary to Brazil which had conceded only 13 per cent, or Ecuador which had given 11 per cent. In fact, no account had been taken of the firm conviction of the indigenous peoples of Peru who underlined the need for an integrated development. The deforestation of huge expansions of woodland, the contamination of the rivers with lead and other heavy metals, produced through irresponsible mining and oil extraction, were consequences which affected not only Peru, but also harmed entire nations and humanity as a whole. For example, only between 2006 and 2009, 48 oil spills had been caused between the sites 8 and 1AB of Pluspetrol, contaminating the Tigres and Corrientes rivers, harming 34 indigenous communities. According to the reports of the Ministry of Health, 98 per cent of girls and boys in these communities surpassed the limits of toxic metals in their blood. While the Government was called upon to give explanations for the non-observance of Convention No. 169, in Peru a national day of combat was taking place in order to protest against the events which had taken place and to demand from the Government the guarantee of all the rights of the indigenous communities.

A solidarity front had been created, composed of indigenous trade union and community organizations, in order to demand the respect of the 1,400 indigenous communities of the Peruvian Amazon and its 65 ethnic groups. The Committee of Experts had on eight occasions issued reports relative to Convention No. 169 and had exhorted the Government to bring law and practice into line with the obligations flowing from this Convention. The CGTP, indigenous, rural and human rights organizations had presented to that Committee additional comments in 2008. Nevertheless, the Government had not complied with any of these observations. The violation of the right to prior consultation had led to an expression of concern by the Committee of Experts in their latest report. Ten years after the first issuing of various reports by the ILO on the issue of prior consultation, to the extent that it affected indigenous peoples, questions relative to the non-compliance with this requirement continued to be raised. The Convention contained a series of rights which in their totality guaranteed the life and development of the indigenous communities. One of these rights was the prior consultation with respect to decisions which affected them. It was a fundamental right of major historical and political significance. Since its recognition, governments were obliged to respect the right of the indigenous peoples to determine their type and pace of cultural, political, social and economic development.

The social and political crisis which was being currently experienced in the country was a major concern. The previous day, the United Nations Special Rapporteur on Indigenous Peoples had appealed to the Government in order to adopt all necessary additional measures to protect the human rights and fundamental freedoms of those affected. The Government in its public interventions ridiculed the indigenous peoples’ struggle, the defence of the indigenous territories and the sustainable exploitation of resources, thus ignoring the global debate on the measures undertaken to ensure that future generations could live on the planet. All countries in the framework of the United Nations considered that this was a fundamental issue. Among the most important measures adopted by the United Nations General Assembly was the designation of the Special Rapporteur on the situation of human rights and fundamental liberties of the indigenous peoples. Moreover, the Permanent Forum on Indigenous Questions had been established. Later on, the Declaration on the Rights of Indigenous Peoples had been adopted, with the active support of Peru to the adoption of this instrument.

Despite the statements of the Government at the international level on the adoption of these mechanisms and the support given to them, its policies defended and promoted the enrichment of the few at the expense of the rights of the ancestral settlers and its activities were developed without caring about the harmful consequences to the environment. The workers of Peru demanded from the Government to maintain genuine social dialogue aimed at solutions to overcome this profound crisis. They rejected the accusations that the President had proffered against the indigenous peoples, trade unions and popular leaders, treating them as terrorists who were opposed to the country’s progress. They were convinced that the fundamental postulate of the ILO Constitution, to which the Peruvian State had also been committed, was irreplaceable and indispensable: universal and lasting peace could only be based on social justice.

In view of the particularly grave situation of the indigenous peoples, she requested that a high-level mission be sent as quickly as possible to evaluate the serious situation of non-observance of Convention No. 169 and to urge the Government to protect the life of the members of the indigenous communities; guarantee the full exercise of the rights of indigenous peoples; repeal the controversial legislative decrees; lift the state of emergency and the curfew in the Amazon forest; and apply urgent measures to safeguard the institutions, persons, goods, culture, work and environment of the indigenous peoples. Finally, it was necessary to reinforce the capacity of the ILO Office in Lima in order to meet the needs of follow-up and technical support of the social partners for the application of Convention No. 169.

An observer representing the World Federation of Trade Unions (WFTU), highly valued the concern of the Committee of Experts regarding the Government’s failure to comply with Convention No. 169 and stated that the Committee of Experts had conducted its monitoring with great professionalism. The issues faced by indigenous populations were not new to Peruvian people; based on the information communicated by the President of the General Confederation of Workers of Peru (CGTP), it could be concluded that the Government had systematically contravened Convention No. 169. He referred to a crime of lese-humanity against indigenous peoples in the Amazonia, in the north of Peru, which he said should be viewed in the proper political context; it had not been circumstantial, but a result of the neoliberal policies that the current Government continued to apply, regardless of the devastating consequences for Peru and other Latin American countries.

One objective of those national policies, besides destroying the trade union movement, had been the privatization of strategic enterprises and natural resources in order to hand them over to transnational companies. Within the country, more than 90 per cent of public enterprises had been sold off between 1990 and 2000. The Amazonia, full of natural riches, was considered to be one of the planet’s lungs, but those transnational companies, far from protecting the region, polluted it and exploited its riches – oil, timber and biodiversity – on a large scale, and such exploitation needed government complicity. Convention No. 169 provided salvation from the outrage and abuse against native communities in the Amazonia; it also protected the environment and the life of those communities, as there seemed to be no limit to the voracity of the transnational companies and the complicity of neoliberal governments.

The speaker said that the Government had no intention of complying with Convention No. 169, despite repeated calls to do so by the Committee of Experts, and had made use of the “delegated authority” it had by way of parliamentary majority, headed by the ruling party and its allies. This authority was used in order to pass a package of legislative decrees, including some related to the sale of land in the Amazonia region; however, the indigenous communities living in that region responded with complaints to national and international authorities. The CGTP took on the battle. Such legislative decrees were unconstitutional and represented a violation of Convention No. 169, as no consultation had been held with the affected Amazonian communities, who demanded the immediate repeal of those decrees. That repeal would have allowed the initiation of dialogue within the framework of the consultation provided for in the Convention, but, in a display of authoritarianism, the Government refused the repeal. Prior to that intransigence, the indigenous communities that were affected had begun demonstrations and, after receiving no response, declared a general strike in the region of Bagua-Jaen. After 55 days, the Government, rather than withdrawing the decrees, resorted to armed violence, by means of heavily armed repression forces; helicopters were employed using machine guns against the people, leading to the killings that had recently shocked both the Peruvian people and the international community. Those responsible were the Executive Branch and the Parliament, both of which, if they had employed the political will to do so, could have resolved the issue and prevented the deaths of dozens of indigenous persons and police officers. These killings were not the first of the current Government; hundreds of political prisoners had been killed and many peasants murdered when it had first taken office between 1985 and 1990. In that regard, the speaker indicated that the report of the Commission on Truth and Reconciliation should be read. He regretted that the Government, in taking office for a second time, had employed the same methods, to the extent that it had criminalized the trade union and social demonstrators, and used firearms against the protesters. During the three years that the current Government had been in office, there had been more than 27 deaths of workers and peasants due to action by repressive armed forces.

He requested the ILO to send a high-level mission to Peru in order to facilitate: ending immediately the repression of indigenous communities; repealing the legislative decrees in question; initiating dialogue with the affected communities within the framework of the consultation provided for in the Convention; ending immediately the state of emergency and suspending the Constitutional guarantees decreed by the Government; and trying and sentencing as many of the perpetrators of the killings as possible. Crimes of lese-humanity could neither be forgotten nor forgiven.

Following the request for two points of order, the Chairperson reminded the Committee that, in the interest of the discussion, it should respect the parliamentary decorum that had governed the Committee since 1926. He urged speakers to keep to the observation by the Committee of Experts that was the subject of the discussion.

The Employer member of Peru said that the timely questions on the observations made by the Committee of Experts in relation to Convention No. 169, which was ratified by Legislative Resolution No. 26,253 of 2 February 1994, had formed the subject of a comment by the spokesperson of the Employers’ group, but, given that recent issues not referred to in the relevant footnote had also been covered, it was pertinent to state the following: the legal order of a country was founded on two indispensable pillars. The first was the “rule of law”; nobody could be above the law. The second was the “division of powers”. Each state authority had its own powers, functions and competences. ILO standards formed part of Peruvian law, under article 55 of the Constitution, and, as such, should be observed. The fact that, for reasons of urgency, it had not proved possible to observe or comply with a particular principle in no way justified criminal actions, given that appropriate channels existed to be used in such circumstances.

Legislative Decree No. 1090, which consolidated procedures for peasant farmer and indigenous communities in the mountains and jungle and those applicable to coastal communities in order to improve agricultural production and competitiveness, had been issued as a result of the “delegated authority” of the Executive Branch by Congress through Act No. 29157, for the purpose of legislating on various matters relating to the application of the United States-Peru Trade Promotion Agreement. As this Act had been challenged by Supreme Decree No. 031–2009 PCM of 20 May 2009, a multisectoral committee had been established to deal with issues related to Amazonian peoples on a permanent basis. It had been agreed to analyse the content of the legislative decree point by point. Despite this agreement, the leaders of indigenous communities later changed their position from revising the act to asking for its immediate repeal, giving rise to acts of violent confrontation and thereby departing from the legal channels provided for in the law, given that an act could only be repealed or amended by another act.

In his capacity as representative of the National Confederation of Private Business Associations (CONFIEP), as well as the National Society of Industries and the Chamber of Commerce of Lima, the speaker read out a statement by Peruvian entrepreneurs energetically condemning the acts of violence that had occurred in recent days and expressing condolences for the losses of police members and of civil population. They supported the Government for the measures it had taken to re-establish the principle of authority and public safety, with strict respect for rights and, in particular, the national police and armed forces, which had acted in full exercise of the authority vested in them by the Constitution.

They called upon the public not to let itself be manipulated by groups seeking to create chaos and urged the population to stay calm, to report acts of violence and respect democracy, institutions and the law. A call was made to regional and local authorities, together with entrepreneurs in all regions of the country to work together in order to find mechanisms for cooperation and dialogue that would better respond to public aspirations.

Lastly, the speaker reiterated the commitment of employers to sustainable development in Peru. Work would continue on a national agenda that, setting aside individual and short-term interests, would build a prosperous country with its own identity and social peace.

The Government member of Denmark, also speaking on behalf of Norway, recalled that the Government was a party to ILO Convention No. 169 and supported the United Nations Declaration on the Rights of Indigenous Peoples, which called for the full respect of indigenous peoples’ rights, the rights related to their traditional lands, territories and resources and to their free, prior and informed consent. With reference to the violent events that occurred in Bagua starting on 5 June 2009, she expressed deep concern and support for the statements issued on 5 June 2009 by the Chairperson of the United Nations Permanent Forum on Indigenous Issues and of the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples on 10 June 2009. She stressed that it was important that all parties abstained from violence and conveyed her deepest condolences to all victims and their families.

According to the information received, the mobilization of indigenous peoples in the Amazon region was in response to a set of legislative decrees that facilitated concessions for extraction industries in the area. These decrees were enacted without adequate consultation and respect for the right of indigenous peoples to free, prior and informed consent. Due to the severity of the situation, she called upon the Government to establish a comprehensive dialogue, through appropriate mechanisms, between the Government and indigenous peoples’ organizations in accordance with Articles 2, 6, 15, 17 and 33 of Convention No. 169, and the UN Declaration and to undertake an independent and impartial investigation of the incidents in Bagua with the participation of the Ombudsman and international agencies.

An observer representing the Public Services International (PSI), said that, within the framework of the signing of the Free Trade Agreement, which Peru had concluded with the Government of the United States, the Congress of the Republic had in December 2007 delegated the authority to legislate on various matters related to the implementation of the United States–Peru Trade Promotion Agreement and on measures to improve economic competitiveness. The Government was legislating through legislative and supreme decrees that were in violation of not only the Political Constitution of the State of Peru but also of ILO Convention No. 169. In July 2007, the Government had adopted supreme decrees criminalizing peaceful movements, freedom of expression, freedom of association and basic human rights. At the same time, it had authorized the national police and armed forces to shoot and kill in the alleged fulfilment of their duties to maintain order. It should be pointed out that these supreme decrees were not authorized by the Congress of the Republic and that, as a result of their application, 13 leaders were being tried for international terrorism. In June 2008, the Government had adopted 103 legislative decrees. Two of these authoritarian laws amended the current regime for legal proceedings, essentially weakening the basic principles of the administration of justice such as the rule of law and the right to defence; but the most serious thing, and that which had led to social upheaval and the killing of indigenous people, was the infringement of ILO Convention No. 169, because the recognition of indigenous peoples as subjects in law who should perpetuate and reproduce their culture within their respective territories, without exclusion, discrimination or interference, had been violated; the right of the indigenous peoples to live freely on their lands and territories maintaining their collectively held property over these territories for their future generations and enjoying special protection so that their living space was not lost or degraded and so that they could use their resources, had been violated.

The speaker emphasized the violation of the right to consultation and participation in the adoption of the law and the removal of the indigenous participation in the Executive Council of INDEPA which had become exclusively a state institution and not one of concertation with the indigenous peoples as provided for in its founding act. She also indicated that the context behind these authoritative legal texts was the privatization of the forests destined to production and that these forests, just like the Andean and peasant communities, were located in indigenous territories.

She stated that the Government had argued that these legal texts were aimed at improving certain aspects related to the implementation of the Trade Promotion Agreement with the United States. Such an argument had been refuted by the spokesperson of the Environmental Investigation Agency, Andrea Jonson, who had expressed his concern with regard to both the content and the process which had led to the approval of the new law, the lack of consultations with the indigenous peoples and the lack of transparency on the part of the Government which was unacceptable in a country which considered itself to be a democracy. The party which endangered the Free Trade Agreement was the Government itself and not the indigenous peoples or the citizens who exercised the right to protest.

The speaker gave a series of data concerning the indigenous communities. According to the latest census of the indigenous and Amazonian communities, 1,786 indigenous communities existed, of which 1,183 had property titles and 603 had been registered in public registries; 65 ethnic groups existed of which 45 were located in the Peruvian forest; more than 300 languages existed. Sixty per cent of the territory was in the Amazon, 13 languages or dialects and 14 peoples or segments of peoples existed; these were isolated and concentrated in the border zone with Brazil. Sixty-six million hectares were tropical forest. International organizations recognized the special tie that the indigenous peoples maintained with their territory, culture and life. These indigenous communities occupied their territories since before the creation of the Peruvian State itself; despite this, the current policy of the Government tended to ignore the indigenous peoples, raised repeatedly and publicly questions concerning their existence, doubted the validity of their common territories and promoted the sale of these lands, indicating that the only possibility for development was that these lands be managed by large companies. As a result, more than 70 per cent of the Amazon was covered by oil sites and mining concessions, concentrated in the Andean region of the country, in particular, in the regions where a large number of rural communities existed.

The speaker then presented the chronology of the attacks against peasants, the indigenous peoples and environmentalists. She referred to the confrontation between the indigenous peoples and the army in which two protesters died in September 2007. She indicated that in a referendum carried out in the districts of Ayabaca and Huancab 90 per cent of the 31,000 voters had rejected the mining project Rio Blanco which the China Majaz company wanted to implement; contrary to the principle of free determination of the peoples enshrined in Convention No. 169, the Government had tried to impose the project and in order to achieve this, it had accused as terrorists 28 Peruvians including municipal officials, environmentalists and NGOs.

In March 2008, when 97 per cent of those voting also rejected in a referendum carried out in the region of Loreto Iquitos the privatization policy of the Government, they were attacked by police forces and two indigenous persons died while 52 others had been arrested and were still in prison.

The speaker considered nevertheless, that the worst was the presence of the paramilitary group COMANDO CANELA, which infiltrated peaceful movements and promoted violence. This group was composed by a large number of police assigned to the intelligence according to Executive Decision No. 2718–2008. Three peasants had died as a result of its action during the agrarian strike in Barranca and Ayacucho on 18 and 19 February 2008.

Finally, the speaker requested the dispatch of a high-level ILO mission to Peru considering that this case touched upon humanitarian questions since the indigenous persons, after being wounded and left without defence, were being transported to the army barracks in order to prosecute them under criminal charges of terrorism and were unable to assume the costs necessary to ensure an appropriate defence. She also referred to the state of vulnerability of the indigenous persons and the extreme violence on behalf of the Government.

The Worker member of the United Kingdom expressed grave concern regarding the events in the previous week in Bagua. These events followed two months of peaceful protest by the indigenous peoples of Peru and supporters, against legislation pushed through by the Government in breach of Convention No. 169, which provided for the right to proper consultation with indigenous peoples. Convention No. 169 allowed for the recognition of the rights of indigenous peoples to live without exclusion or discrimination, to live freely in their lands and territories, and to maintain collective property for future generations. It provided special protection to prevent loss of livelihood and the benefit of the use of the resources. However, Peru had in the previous year adopted laws to enable communal land to be disposed of more easily. This was not only in violation of the Constitutional rights of participation and consultation of rural and native communities, but also in breach of the fundamental rights recognized by the Peruvian Constitution.

For decades, natural resources had been exploited ruthlessly without participation or consultation with the people who occupied those lands; Peru’s mining and oil policy contained no guarantees of participation for its indigenous peoples. Millions of hectares of oil and gas deposits had been tapped, millions of hectares of virgin forest had been assigned for reforestation, all without reference to the peoples who were guaranteed rights under Convention No. 169. This had also been done without reference to the right of fair compensation for damages to territories, while the benefits of this exploitation accrued to the State institutions and corporations involved. Instead of promoting a national agrarian programme which guaranteed a sufficient area of land for indigenous communities, and protected the cultural and ethnic plurality of the Peruvian nation as required by Convention No. 169, the Government had instead promoted the dissolution of communities and the advancement and profit of individual producers.

Referring to the Committee of Experts’ report, she pointed out that the Peruvian Constitution was contradictory and vague, failing to make explicit which of its people were entitled to claim the guarantees of the Convention. Instead of the term “indigenous peoples”, the Peruvian Constitution employed the terms “native community” and “rural communities”, which were vestiges of the colonial past and sowed confusion as to the scope of the existing legal protections.

It was no surprise that Peru did not reply to the Committee of Experts or bring its laws into compliance with the latter’s requests; previous criticisms of labour practices had also not been brought into conformity, and the failure to act on the breaches of Convention No. 169 followed the same pattern. The Government’s current policy tended to deny the existence of indigenous peoples and their rights. President Garcia had publicly questioned the validity of communal lands and stated that the only way to guarantee development was to leave it to major companies and multinationals. He also refused the demands of indigenous organizations and environmentalists, claiming that they were motivated only by anti-capitalist or protectionist ideology and were opposed to development in Peru. The President was opposed to the recognition of isolated indigenous peoples, having stated that such groups were a mere invention, in spite of their recognition by many institutions and organizations, such as the Peruvian Ombudsman, the Ministry of Health, the Inter- American Commission of Human Rights and others.

More than 70 per cent of the Peruvian Amazon was now open to private profit, with giant oil and gas companies such as the Anglo-French company Perenco, the North American company Conco Phillips, and Talisman Energy having invested billions of US dollars into extracting natural resources from this region. For decades, indigenous peoples had watched as these industries devastated the rainforest that was their home, as well as a vital treasure to mankind. It was the duty of this Committee to respond with strong and clear determination to this flagrant breach of Convention No. 169 and the consequent suffering of peoples who had sought to defend their rights by opposing the terrible and terrifying destruction of these lands.

The Employer member of Colombia indicated that the ILO should only refer to the matters that concerned it directly, namely, the world of work. The more general issues related to indigenous and tribal peoples pertained to the competence of other human rights organizations and various international treaties and, as such, would be addressed in the appropriate frameworks, for example, the inter-American system of human rights. Only the contents of Articles 20 and 25 of the Convention were related to labour matters. He referred to a draft law aimed at regulating the issue of indigenous peoples in the country and other issues in the appropriate forums with the support of the affected peoples. This draft law should be adopted rapidly. He also referred to INDEPA, in the sense that it had a large indigenous participation but was in the process of changing. The Regional Office of the ILO had offered its technical assistance. Discussion forums had been created in the Amazon forest and participation and consultation were taking place at the local level with the hydrocarbon sector for the exploration and exploitation of indigenous lands. The same applied to the energy and environment sectors.

He requested that the names of the enterprises concerned should not appear in the report of the Committee of Experts. While expressing his sadness for the acts of violence which had taken place lately, he echoed the Government’s readiness to engage in social dialogue. Finally, he underlined the nature and scope of Article 34 of the Convention. It contained the element of flexibility with regard to the situation of each country. He also expressed his wish that sanctions be imposed on those responsible for the recent events.

The Government member of Uruguay, speaking on behalf of the Group of Latin American and the Caribbean States (GRULAC), highlighted the Peruvian Minister of Labour’s statement in reference to the progress made to ensure the application of Convention No. 169, including the establishment of regional and local mechanisms for dialogue with the indigenous peoples, the creation of the National Institute for the Development of the Andean, Amazonian and Afro-Peruvian Peoples, and the mechanisms for dialogue contained in the legislation respecting extractive activities. He also emphasized the Peruvian Ministry of Labour’s statement expressing the Government’s firm political willingness to continue to dialogue with indigenous peoples to achieve consensus on matters that concerned them. He also appreciated Peru’s recognition of the challenges it had to meet to achieve full implementation of the Convention. He requested the Office to provide the necessary technical assistance in accordance with the requests of the Government. He noted that several of the countries in the region had been called to appear before this Committee, despite the fact that they were countries which cooperated with the supervisory bodies and made efforts, on the national level, to fully respect labour rights. He expressed his concern at this situation being prolonged without interruption, to the detriment of the investigation by this Committee of other serious cases in other parts of the world. Lastly, he asked that the significant progress made by Peru in applying the Convention be taken into account in the Committee’s conclusions.

The Worker member of Venezuela stated that the Government was under the obligation to recognize, respect and protect indigenous peoples, taking into account the provisions of its own national Constitution and the international treaties, including Convention No. 169, which had been ratified 15 years ago. There had been, however, a continued climate of hostility towards indigenous peoples, beginning with the first Government of the current President, followed by those of Fujimori and Toledo, and now once again in an even more exaggerated manner with the President’s second mandate. This had been clearly demonstrated in subsequent legislative reforms intended to repress demonstrations of indigenous peoples, popular organizations, trade union leaders and peasants. All of this for the sake of restricting and suppressing their ability to defend themselves and thus denying the indigenous peoples’ rights that had been recognized historically by the Peruvian people. She indicated that, in accordance with Article 3 of Convention No. 169, the Government was required to ensure that indigenous peoples enjoyed the full measure of human rights and fundamental freedoms without hindrance or discrimination. She also pointed out that no form of force or coercion could be used in violation of their human rights and fundamental freedoms. What characterized the Peruvian model of development was that it was based mainly on the exploitation of its natural resources, which led to the destruction of the living conditions of indigenous peoples, without having considered the impact these policies had which caused outright deterioration. She emphasized the importance of considering the context in which these four decrees had been issued, which had led to the recent events qualified as genocide and state terrorism. The context was the Government’s imposition of the Free Trade Agreement on the defeated Free Trade Area of the Americas, without consulting the Peruvian people, as had occurred to other European countries in relation to the Constitution of the European Union. She emphasized the importance of the ILO’s role and supported the request made before the Committee for a high-level mission to attempt to put an end to the executions and violence, and called for the definite repeal of the four decrees that thwarted the rights of indigenous Peruvians.

A member of the United Nations Permanent Forum on Indigenous Issues thanked the ILO for the opportunity to address the Committee on the Application of Standards. With reference to the violent events that occurred in Bagua starting 5 June, he expressed his deep concern. He referred to the information provided by the Permanent Mission of Peru to the United Nations, and made available to the Permanent Forum. He also referred to a statement issued by the Chairperson of the Permanent Forum calling, inter alia, for a cessation of the violence by all parties, and expressed his deepest condolences to all the victims of the violence and their families.

The events of 5 June had followed a state of siege decreed by the Government on 8 May 2009, which was issued in response to the mobilization of indigenous peoples in the Amazon region against a series of legislative decrees that facilitated extractive industries’ concessions in the area without adequate consultations and respect for the right of indigenous peoples to free, prior and informed consent. The Chairperson of the Permanent Forum had previously expressed her concern that the state of siege resulted in the suspension of personal liberties and political freedoms of the indigenous peoples in the Amazon region, the criminalization of indigenous leaders and human rights defenders and the increasing militarization of indigenous territories.

The speaker recalled that the Government was under the obligation to respect the human rights of indigenous peoples as a party to ILO Convention No. 169, as well as other relevant human rights instruments. Furthermore, Peru had led the negotiations on the United Nations Declaration on the Rights of Indigenous Peoples and was one of the countries which had actively supported its adoption, which called for the full respect of indigenous peoples’ rights, including the rights to life, physical and mental integrity, liberty and security of person, as well as the rights related to their traditional lands, territories and resources and to their free, prior and informed consent as contained in Articles 26, 29 and 32.

Given the extreme gravity of the situation and the urgent need to avoid any recurrence, he called on the Government to: work with indigenous peoples with a view to establishing a genuine and respectful dialogue between the Government and indigenous peoples’ organizations; establish as a matter of urgency an independent and impartial investigation of the incidents in Bagua with the participation of the Ombudsman and international agencies; ensure immediate and urgent medical attention to all those wounded, and assist the families of the victims; and abide by its national and international obligations regarding the protection of all human rights, including the rights of indigenous peoples and human rights defenders, especially their right to life and security.

Finally, the speaker expressed the willingness of the Permanent Forum to assist both the Government and the indigenous peoples concerned to explore ways to reach an agreement based on dialogue, mutual understanding, tolerance and respect for human rights. There existed an urgent need for the Government and affected indigenous peoples to make renewed, concerted efforts toward a resolution of the conflicts in the region in an open and transparent manner that facilitated dialogue, avoided violence and respected human rights.

The Government representative of Peru, Minister of Labour and Employment Promotion, after thanking the Committee for its interest, indicated that such interest should be accompanied by good faith action so that the Government could engage in dialogue with the respective communities. He took exception to some of the interventions, that he considered erroneous as they created wrong impressions.

With regard to the consultation to which various worker representatives had referred, and with reference to a recent web page depicting the ILO forcing his country to sit on the defendant’s bench, the speaker made an appeal for social dialogue in good faith, which had always been a pillar of the ILO. Social dialogue presupposed the search for interlocutors who sought formulas of understanding for the common good of their countries.

As for the legislative developments, he indicated that Act No. 29376 had just been approved by the Congress of the Republic. According to that law, there was no deadline for the suspension of legislative decrees. On 24 March 2009 a permanent dialogue process had been created by decree, bringing together representatives of the Government and the indigenous peoples of the Peruvian Amazon. This demonstrated the great willingness to engage in dialogue with the indigenous communities. On 31 March 2009, a working commission had been established. All this, in addition to the Multisectoral Commission, clearly illustrated the reinforcement of the indigenous institutions, and proved the goodwill of the Government in line with social dialogue.

As for the legislative decrees, these were authorized by law, as the legislature was entitled to delegate the power to the executive. A Constitutional Court existed and could make a finding of nullity if the legal framework was exceeded. Legislative Decree No. 1090 was adopted in order to put into order diverse pieces of legislation. In this regard, it was important to underline that more than 1,250 communities received land through a programme. Some 240 communities did not benefit, however, as their documentation was destroyed in a fire. It was worth noting that forced labour and illegal logging existed in the Amazon: over 10 million hectares had been cleared due to a lack of regulation. In fact, a draft law for the adoption of a legislative framework was before Congress. It was not acceptable to ask for everything to be repealed and then engage in dialogue. Finally, the speaker added that when the Government came to power, the poverty rate exceeded 50 per cent of the population. That rate had fallen to 35.8 per cent and was expected to fall further to 30 per cent by 2010.

The Employer members stated that the present case was a serious case, comprising non-reporting and a lack of implementation of the Convention. Given that indigenous and tribal peoples often would be among the most disadvantaged in society, the Employer members urged the Minister to consider a plan of action to address the problems related to the application of Convention No. 169. They recalled that under Article 34 of Convention No. 169, “the nature and scope of the measures to be taken to give effect to this Convention (should) be determined in a flexible manner, having regard to the conditions characteristic of each country”. They also urged the Government to take immediate and positive steps to provide the Committee of Experts with the information it required to properly assess the issues. With reference to the request from the Government for technical legislative support, they stated that this should be recorded in the conclusions to ensure the provision of constructive support, especially with regard to the correct interpretation of Article 1 of Convention No. 169. A full explanation of the difficulties and concerns at the national level, involving the social partners, would help the Committee of Experts to suggest solutions for the correct application of Convention No. 169, addressing legislative and practical difficulties. The Employer members stated that they expected the conclusions to address the examination of Convention No. 169 and the comments of the Committee of Experts, and added that the Government had been asked by the Committee of Experts to reply in detail to the present comments in 2009.

The Worker members stressed that the statements of the various speakers had demonstrated the existence of a situation of extreme urgency. The murders that had been denounced were related to the subject covered by Convention No. 169. Freedom of expression as well as parliamentary language had to be respected. With regard to Legislative Decree No. 1090, which was suspended for 90 days, the time was limited because the Government had to amend the text in order to bring it into conformity with the requirements of the Convention, in particular, those provisions relating to consultation with indigenous peoples. Article 7 of the Convention established the right of participation of indigenous peoples in the development plans of the territories they inhabited. It also provided that the particular plans for these regions had to, as a matter of priority, improve the conditions of life. Convention No. 169 was not limited to labour law, as had been inaccurately stated. The Convention formed a whole and all its articles were within the competence of this Committee. In accordance with the suggestions made by many Governments and the UN Special Rapporteur, the Worker members requested that a high-level mission should be sent as soon as possible with a view to establishing the political and legal conditions that would guarantee the rights prescribed by the Convention to the indigenous peoples. The report of this mission had to be submitted to the Committee of Experts at its session in 2009, in order for it to determine the steps that had been, or still had to be, taken.

The Worker members, considering the seriousness of the case under examination, deeply regretted that the request for a high-level mission had not been accepted, despite the fact that the Government had invited the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples to visit the country.

Conclusions

The Committee noted the statement of the Government representative and the discussion that followed. The Committee noted that the Committee of Experts had issued comments over a number of years, expressing concerns over the continuing problems in the application of the Convention in several areas, particularly with regard to the need to establish harmonized criteria for the identification of indigenous peoples (Article 1), the need to develop systematic and coordinated action to protect the rights of these peoples and to guarantee respect for their integrity (Articles 2 and 33), as well as the need to establish adequate mechanisms for consultation and participation, which were provided with the necessary means to carry out their functions, including with regard to the adoption of legislative measures and exploitation of natural resources (Articles 2, 6, 7, 15, 17(2) and 33). The Committee expressed its concern that the Government had repeatedly failed to provide replies to the specific requests for information made by the Committee of Experts.

The Committee noted the Government’s indication that a draft framework law on indigenous peoples had been prepared, which, inter alia, defined “indigenous and aboriginal peoples” in terms of Article 1 of the Convention. With regard to Articles 2 and 33, the Government referred to the National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA), which was established in 2005. With regard to Articles 6 and 17, the Government stated that Legislative Decrees Nos 1015 and 1073, regarding the conditions for the disposal of communal land, had been repealed by Act No. 2926 of 2008. Regarding consultation and participation, the Government had established a Roundtable for Permanent Dialogue between the State of Peru and the Indigenous Peoples of the Peruvian Amazon in March 2009, and in April 2009 the Government had put in place a multi-sectoral commission as another forum for dialogue to address the concerns of the indigenous peoples of the Amazon.

The Committee noted the Government’s statement that a number of Legislative Decrees had been issued in 2008 relating to the exploitation of natural resources, including Legislative Decrees Nos 1064 and 1090, and that the divergence of views between the Government and the indigenous peoples concerned regarding these Decrees may not be resolved through the mechanisms of dialogue in place. The Government also informed the Committee of a subsequent mobilization of indigenous peoples and incidents in Bagua on 5 June 2009, which led to numerous deaths and injuries among indigenous peoples and the police.

The Committee expressed its grave concern regarding this violence and the resulting deaths and injuries, and urged all parties to abstain from violence. The Committee called on the Government to make further efforts to guarantee indigenous peoples’ human rights and fundamental freedoms without discrimination, in accordance with its obligations under the Convention (Article 3). The Committee noted that the present situation in the country emerged in connection with the enactment of legislative decrees relating to the exploitation of natural resources on lands traditionally occupied by indigenous peoples. The Committee noted that the Committee of Experts, over a number of years, had commented on the enactment of legislation regarding these issues without consultation of the indigenous peoples concerned, which was contrary to the Convention.

The Committee welcomed the stated commitment of the Government to re-establish dialogue, and to put in place a coherent legislative framework addressing the rights and concerns of indigenous peoples. The Committee stressed that genuine dialogue must be based on respect for indigenous peoples’ rights and integrity. The Committee welcomed the recent suspension of Legislative Decrees Nos 1064 and 1090 by Congress, and the establishment of a National Coordination Group for the development of indigenous peoples of the Amazon on 10 June 2009, in order to facilitate the search for solutions to the claims of indigenous peoples of the Amazon. The Committee called on the Government to make more efforts to ensure that no legislation regarding the exploration or exploitation of natural resources was being applied or enacted without prior consultation with the indigenous peoples affected by these measures, in full conformity with the requirements of the Convention.

The Committee stressed the Government’s obligation to establish appropriate and effective mechanisms for consultation and participation of indigenous peoples, which was the cornerstone of the Convention. Indigenous peoples had the right to decide their own priorities and to participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly, as provided for in Article 7(1) of the Convention. This would remain an issue of concern if the bodies and mechanisms for consultation and participation of indigenous peoples had no real human and financial means, independence or influence on the relevant decision-making processes. In this regard, the Committee urged the Government to immediately establish a dialogue with indigenous peoples’ representative institutions in a climate of mutual trust and respect, and called on the Government to establish dialogue mechanisms as required under the Convention, in order to ensure systematic and effective consultation and participation. In addition, the Committee called on the Government to remove the ambiguities in the legislation as to the identification of the peoples covered by it by virtue of Article 1, which was also a key aspect to be addressed in order to achieve sustainable progress in the application of the Convention.

The Committee urged the Government to take the measures necessary to bring national law and practice into line with the Convention, without delay. The Committee requested the Government to elaborate a plan of action in this regard, in consultation with the representative institutions of indigenous peoples. The Committee welcomed the Government’s request for technical assistance and considered that the ILO could make a valuable contribution in this regard, including through the ILO’s Programme to Promote ILO Convention No. 169 (PRO169). The Committee requested the Government to provide complete information in its report under article 22 of the ILO Constitution in 2009 replying to all the issues raised in the Committee of Experts’ observation, as well as the matters raised in the communications received by the Committee of Experts from the various workers’ organizations, which were prepared in collaboration with organizations of indigenous peoples.

Finally, the Committee took note with interest of the information provided by the Government that an invitation had been extended to the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples to visit the country.

The Worker members, considering the seriousness of the case under examination, deeply regretted that the request for a high-level mission had not been accepted, despite the fact that the Government had invited the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples to visit the country.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 14 of the Convention. Community of Santo Domingo de Olmos. In its previous comments, the Committee referred to the case of the community of Santo Domingo de Olmos. The Committee recalls that Supreme Decree No. 017‑99-AG established as unclaimed land (tierras eriazas) 111,656 hectares to which the Olmos community asserts ancestral rights and provided for the land to be registered for the Olmos Special Hydro-Energy Irrigation Project. The Committee asked the Government to take the appropriate steps, in consultation with the community concerned, to identify and remove the obstacles, including procedural ones, that were preventing the community of Santo Domingo de Olmos from proceeding effectively to claim the lands which it says it has traditionally occupied, so that it may have access to the procedures prescribed in Article 14(3) of the Convention. The Committee notes the Government’s indication that the purpose of the irrigation project is to improve irrigation, extend the frontiers of agriculture and expand the generation of electricity. The lands incorporated into the domain of the State were not registered in the name of any natural or legal person and have remained in the peaceful possession of the Olmos Tinajones Special Project for more than ten years. In addition, an agreement has been reached with the Olmos farming community under which 5,500 hectares will be equipped with infrastructure for irrigation, the optimum use of water and farmers’ associations will be promoted in order to generate economies of scale. A participatory process concerning relocation was conducted with the Santo Domingo de Olmos community. The issues of relocation and compensation are being carried out by a team of specialists through a compensation and relocation plan. In addition, the president of the Santo Domingo de Olmos community is a member of the Executive Council of the Olmos Tinajones Special Project, which is the supreme body of the entity. Finally, the Government indicates that in October 2009 the community of Santo Domingo de Olmos and the Olmos Tinajones Special Project signed a specific agreement whereby the project will cover the expenses of the administrative and registration procedures relating to the granting of land ownership so that the community can participate in the development resulting from the hydro-energy project. The Committee requests the Government to continue to supply information on the impact of the agreements signed between the community of Santo Domingo de Olmos and the State, and particularly on the participatory process relating to relocation and compensation and the process of granting land ownership.

Article 25. Health. The Committee notes the Government’s indication that a project entitled “Analysis of the health situation of indigenous peoples” has been under way since 2002 which gathers information on the principal health problems affecting these peoples. In 2008 and 2009, an epidemiological surveillance study on sexually transmitted diseases, HIV/AIDS and hepatitis B was conducted. A campaign was also undertaken to strengthen health-care provision in certain regions. The Committee requests the Government to continue to supply
up-to-date information on the measures taken pursuant to Article 25 of the Convention.

Article 31. Educational measures. In its previous comments, the Committee asked the Government to take educational measures as a matter of urgency in all sectors of the national community so as to eliminate any prejudice that might exist with regard to the peoples covered by the Convention. In this respect, the Committee notes the Government’s indication that: (1) the culture of the original peoples is included in the curriculum of all bilingual and non-bilingual educational institutions; (2) the teacher training programme is developing initial and further training for teachers working in bilingual and non-bilingual educational institutions; (3) the use and rehabilitation of indigenous languages is being promoted throughout the country and the standardization of various national languages has been undertaken; (4) campaigns to promote inter‑cultural relations have been conducted, educational materials have been published to ensure that information is gathered on the basis of criteria of equity and inclusiveness, and material in original languages has also been published; and (5) university diploma courses for public employees have been established with the aim of raising their awareness as regards the adoption and practice of inter-cultural public policies. The Committee requests the Government to continue to take all possible steps to eliminate prejudices against the peoples covered by the Convention and to provide information on any developments in this respect.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the discussion which took place in the Conference Committee in June 2010 and its conclusions. The Committee also notes the comments dated 27 July 2010 from the General Confederation of Workers of Peru (CGTP) prepared with the cooperation of the Inter-Ethnic Association for the Development of the Peruvian Rainforest (AIDESEP), the National Confederation of Communities of Peru affected by Mining (CONACAMI), the National Agrarian Confederation (CNA), the Farmers’ Confederation of Peru (CCP), the Peace and Hope Association, the Amazonian Centre of Anthropology and Practical Application (CAAP), CARE Peru, Law, Environment and Natural Resources (DAR), the Institute of Public Welfare (IBC) and the Indigenous Information Service (SERVINDI), which refer to outstanding issues, particularly the failure to promulgate the Act concerning the right of indigenous and original peoples to prior consultation and the existence of a bill which allows the displacement of people in large-scale projects, and the existence of numerous decrees aimed at dividing up and reducing communal territories. The Committee also notes the comments from the Single Confederation of Workers of Peru (CUT) of 25 August 2010 concerning the lack of recognition of indigenous peoples in the country, disregard for the right of consultation of indigenous peoples, problems regarding the definition of lands traditionally occupied by indigenous peoples, and the lack of adequate institutions in the country to deal with the issues of indigenous peoples since the National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) is not fulfilling its mandate and there is no indigenous participation in its executive council. According to the CUT, as a result the Government has been obliged to set up round tables for dialogue to settle disputes with the Amazonian indigenous peoples. The Committee notes that the Government sent its observations on the comments from the CGTP in a communication dated 7 October 2010. The Committee points out that some of the issues raised by the trade union organizations are the subject of a representation under article 24 of the Constitution and will therefore be examined in that context.

Follow-up to the conclusions of the Conference Committee. The Conference Committee in 2009 raised a range of issues, including the incidents in Bagua, resulting in numerous deaths and injuries among indigenous peoples and the police. The Conference Committee in 2010 urged the Government to provide information on the promulgation and application of the Act concerning the right of indigenous or original peoples to prior consultation adopted on 19 May 2010 by the Congress and the related transitional measures in order to evaluate compliance with the provisions of the Convention. The Conference Committee also considered it necessary to reform INDEPA with the full participation of the representative organizations of the indigenous peoples in order to ensure its legitimacy and authentic capacity for action and to guarantee the application of the Act concerning consultation. The Conference Committee also requested information on the application of the development plan for the Amazonian region. It also considered that progress needed to be made in relation to the formulation and application of plans of action to deal systematically with pending issues relating to the protection of the rights of peoples covered by the Convention, and it emphasized the need to ensure that these plans of action are formulated and implemented with the participation of the representative organizations of the indigenous peoples, in accordance with Articles 2 and 6 of the Convention. Finally, the Conference Committee asked the Government to send information on the impact on the training of bilingual teachers of Ministerial Decision
No. 0017-2007-ED establishing admission criteria for candidates as teachers. It encouraged the Government to avail itself of ILO technical assistance to ensure that adequate progress is made in the application of the Convention.

Investigation of incidents in Bagua. In its previous comments, the Committee urged the Government to take the necessary steps without delay to conduct an effective and impartial investigation into the incidents of June 2009 in Bagua, in which 23 police officers and ten civilians died, and provide detailed information in this regard. The Committee notes the Government’s statement that, in the context of the National Coordinating Group for the Development of the Amazonian Peoples (Dialogue Group), Round Table No. 1 was established composed of three representatives of the Executive Authority, three representatives of the indigenous peoples and one representative of the regional governments. The round table drew up one report by the majority and one report by the minority of its members, and these, according to the Government, were approved by the Presidency of the Council of Ministers and referred to the corresponding departments of the Executive Authority, Office of the Public Prosecutor and Judicial Authority. The Committee also notes that the Congress set up the “Multi-Party Commission of Inquiry into the events in the city of Bagua and surrounding area”, which also drew up reports which were submitted to the plenary of Congress, and that the Office of the Provincial Prosecutor of Utcubamba instituted various judicial proceedings for the criminal offences of murder, violence, resistance towards the authorities and the carrying of firearms. The Committee notes the indication of the CGTP that the majority report drawn up by Round Table No. 1 does not shed light on the events that took place or assign responsibilities for what happened and was not accepted by the indigenous peoples. The CGTP also emphasizes that the report of Congress concluded that the events were caused by violations of the fundamental rights of the indigenous peoples. The Committee requests the Government to provide information on the measures taken as a consequence of the various reports drawn up in the context of Round Table No. 1 of the National Coordinating Group for the Development of the Amazonian Peoples, the conclusions reached by the plenary of the Congress in relation to the reports drawn up by the Multi-Party Commission of Inquiry, and also on the outcome of the judicial proceedings in progress regarding the events that took place in Bagua.

Article 6. Consultation. The Committee recalls that the Conference Committee welcomed the adoption by the Congress of the Republic of the Act concerning prior consultation and indicated that it trusted that the Act would be promulgated in the very near future by the President of the Republic. The Committee also recalls that the Act had been the result of negotiations between the Executive Authority and the Amazonian organizations in the context of Round Table No. 3, whose objective was to reach a consensus on legislation concerning consultations. In this respect, the Committee notes with regret the statement from the Government to the effect that since the adoption by Parliament of the Act concerning the right of indigenous or original peoples to prior consultation, the Act was not promulgated by the Executive Authority, which made certain observations relating to it (Official Letter No. 142-2010-DP/SCM). The Government adds that the Act was referred back to Parliament for revision, that the Commission for the Constitution and Regulations and the Commission for Andean, Amazonian and Afro-Peruvian Peoples, Ecology and the Environment have already issued opinions in this respect, which will be examined by the plenary of Congress in the near future. The Committee notes that, in its observations on the Act approved by Congress, the Executive Authority: (1) remarked that it should be made clear in the Act that indigenous peoples do not have any right of veto in the consultation process concerning projects for the exploration and exploitation of natural resources which have been duly notified and analysed together with the indigenous peoples in the areas covered by the said projects (observation No. 1); (2) considered that the possibility established in section 9 of the Act that indigenous peoples may challenge the decisions of the Executive Authority with respect to the participation of certain indigenous peoples vis-à-vis the Judicial Authority was “reiterative inasmuch as any person or institution may now file appeals to assert guarantees, applications for decisions to be set aside or for compensation with the Judicial Authority” (observation No. 5); (3) considered that “the Act must clearly state the difference between territories under public ownership in Amazonia and areas assigned to the ownership of native communities […] . It is in the context of the latter that the right to consultation must be exercised” (observation No. 6).

In this context the Committee refers to its general observation of this year, on the “obligation to consult” under the Convention which is intended to mean that: (1) consultations must be formal, full and exercised in good faith; there must be a genuine dialogue between governments and indigenous and tribal peoples characterized by communication and understanding, mutual respect, good faith and the sincere wish to reach a common accord; (2) appropriate procedural mechanisms have to be put in place at the national level and it has to be in a form appropriate to the circumstances; (3) consultations have to be undertaken through indigenous and tribal peoples’ representative institutions as regards legislative and administrative measures; (4) consultations have to be undertaken with the objective of reaching agreement or consent to the proposed measures. The Committee therefore emphasizes that the right of indigenous peoples to consultation cannot be limited exclusively to measures affecting indigenous lands in respect of which ownership title has already been granted, as observation No. 6 of the Executive Authority appears to suggest, but must also encompass administrative or legislative measures which may affect them directly, including those concerning indigenous lands or territories traditionally occupied or used regardless of whether or not ownership title has been granted with respect to them. They must also be able, pursuant to Article 12 of the Convention, to take legal proceedings, either individually or collectively, for the effective protection of their rights, including their right to consultation. The Committee expresses the firm hope that the Act on the right of indigenous or original peoples to prior consultation will be approved in the near future by Congress, that the Act will be the result of an ongoing process of consultation with the representative institutions of the indigenous peoples, including regarding the observations of the Executive Authority and that the Act will be in full conformity with the provisions of the Convention. In addition, the Committee requests the Government to ensure full observance of the right of indigenous and tribal peoples to participate and be consulted prior to the adoption of legislative or administrative measures which may affect them directly. The Committee also requests the Government to guarantee that there are specific provisions in the Act so that indigenous peoples can take legal proceedings, either individually or through their representative bodies, in the event that they consider that their right to be consulted on measures affecting them directly has not been observed. The Committee requests the Government to provide information on any progress made in this respect.

The Committee also notes the explanatory decision of the Constitutional Court dated  24 August 2010 (in relation to file No. 06316-2008-PA/TC), which provides that it is necessary to establish that the mandatory nature of the right to consultation shall be considered binding as from the publication of Constitutional Court Ruling No. 022-2009-PI/TC, in light of the considerations set out therein. The Committee emphasizes that Ruling No. 022-2009-PI/TC is dated 9 June 2010, and therefore that the right to consultation was not considered binding before that date. In this respect, the Committee recalls that, in conformity with Article 38 of the Convention, the Convention shall come into force for any Member of the ILO 12 months after the date on which its ratification has been registered. Taking account of the fact that Peru ratified the Convention on 2 February 1994, the Committee reminds the Government that all the provisions of the Convention, including those relating to the obligation of consultation, have been binding on it since 2 February 1995. Pursuant to Article 38 of the Convention and in the light of Article 12 of the Convention concerning the legal protection of the rights recognized in the Convention, the Committee requests the Government to indicate how it ensures that indigenous peoples have been able to enjoy effective judicial protection of the right to consultation from the date of entry into force of the Convention.

Articles 2 and 33. Coordinated and systematic plan of action. In its previous comments, the Committee urged the Government to ensure full and effective participation and consultation of the indigenous peoples through their representative institutions in preparation of the plan of action drawn up to address, in a coordinated and systematic manner, outstanding problems relating to the protection of the rights of the peoples covered by the provisions of the Convention and to align national law and practice with the Convention. The Committee also asked the Government to supply information on this matter and on the work of the various bodies concerned, indicating how the participation of the peoples concerned and the coordination of the activities of these bodies are ensured, as well as coordination between the work of these bodies and the preparation of the plan of action. The Committee notes the indication from the CGTP that there is still no agreed plan of action or any dialogue or consultation on its implementation and that the various state bodies are continuing their sectoral policies without any real participation from the indigenous peoples. In this respect, the Committee notes the Government’s indication that, in the context of the National Coordinating Group for the Development of the Amazonian Peoples, Round Table No. 4 (National Development Plan for Amazonia) was established, in which 82 working meetings were held and a National Development Plan for the Amazonian Peoples was drawn up, based on consensus between representatives of the national Government, regional governments and the two most representative indigenous organizations (the Inter-Ethnic Association for the Development of the Peruvian Rainforest (AIDESEP) and the Confederation of Indigenous Nationalities of Peru (CONAP)). This Plan provides for measures (some of which were requested by the Committee) in the following areas: right of ownership and legal certainty, bilingual inter-cultural education, inter-cultural health system, participation of indigenous peoples in the use of natural resources, development policies and production projects. The Committee reiterates its concern that the proliferation of bodies with mandates that sometimes overlap may hamper the development of a coordinated and systematic response to the problems of protecting and ensuring the rights of indigenous peoples and recalls that Articles 2 and 33 of the Convention provide for coordinated and systematic action with the participation of the indigenous peoples from the planning through to the evaluation of the measures provided for in the Convention. The Committee requests the Government to:

(i)    state whether the National Development Plan for the Amazonian Peoples is being implemented and the results achieved;

(ii)   clarify whether any other plan has been drawn up in consultation with the indigenous peoples at national or regional level intended for indigenous peoples in general or specifically covering the Andean communities;

(iii)  send additional information on the functions performed by the various entities mentioned by the Government and whether they are still active and on the manner in which coordination is ensured between them.

National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA). The Committee emphasizes that the Conference Committee noted the Government’s indication that the Act concerning the right of indigenous and originals peoples prior consultation assigns a central role to INDEPA and considered that INDEPA needed to be reformed with the full participation of the representative organizations of the indigenous peoples in order to ensure its legitimacy and its genuine capacity for action. The Committee notes that the CGTP indicates once again that there have been no consultations with indigenous peoples regarding the institutional reform of INDEPA. The Committee notes the Government’s indication that, in compliance with the conclusions of the round tables established in the context of the National Coordinating Group, in which the representatives of the organizations of the indigenous peoples participated, INDEPA was transferred to the Presidency of the Council of Ministers and was declared a specialized technical public entity (Supreme Decree No. 022-2010-PCM and Supreme Decree No. 048-2010-PCM). The Government also indicates that the establishment is envisaged of an executive council composed of representatives of the Andean, Amazonian and Afro-Peruvian peoples. The Government indicates that INDEPA has four national coordination centres, with indigenous representatives, which have been set up recently. This enables coordination between the Andean, Amazonian and Afro-Peruvian peoples and the regional and local governments, and makes it possible to prevent disputes, promote participation and create an ongoing participation machinery. The Committee observes that the Council of Ministers is currently revising the regulations governing the operating structures of INDEPA and that, since the adoption of Act No. 29565 of 22 July 2010, is now no longer attached to the Presidency of the Council of Ministers but to the Under-Ministry of Inter-Cultural Affairs, which is under the responsibility of the Ministry of Culture. The Committee observes that for years the INDEPA has been affected by considerable institutional instability, that it has changed hierarchical structure on various occasions, and that it has been under the responsibility of different ministries and authorities at different times. The Committee requests the Government to take the necessary steps to ensure the effective participation of the representative institutions of the indigenous peoples in the institutional reform of INDEPA, in the constitution of its executive council and in the revision of the regulations governing its functions, in order to ensure its legitimacy and its genuine capacity for action. The Committee requests the Government to provide information on this matter and also on the impact of the recent establishment of the four INDEPA centres on the dialogue between the regional and local governments and the indigenous peoples concerned, on the participation of the latter in INDEPA’s activities and on the prevention of disputes.

Follow-up to the Committee’s comments. Article 1. Peoples covered by the Convention. The Committee recalls that in its previous comments it noted a framework Bill concerning the indigenous or original peoples of Peru, which lays down a definition of indigenous or original peoples with a view to removing ambiguities from the national legislation regarding identification of the peoples covered. The Committee asked the Government to align, in consultation with the indigenous peoples, the definition in the framework Bill with the Convention. The Committee also asked the Government to supply information on the manner in which effective consultation and participation was ensured with indigenous peoples in the preparation of the Bill and also on the measures taken to ensure that all the peoples covered by Article 1 of the Convention are covered by all the provisions of the Convention and enjoy the rights set forth therein on an equal footing. The Committee notes the comments from the CUT that there is no political will to consult the indigenous peoples with a view to establishing unified criteria for their identification. The Committee also notes that the CGTP refers to the exclusion of the communities of the Andean and coastal zone from the protection of the Act concerning the right to prior consultation.

In this respect, the Committee notes the Government’s indication that a participatory consultation process was conducted in the context of the National Coordinating Group with representatives of the indigenous peoples with a view to aligning national legislation in relation to the definition of indigenous peoples (Round Table No. 3). The opinions presented were analysed in the Commission for Andean, Amazonian and Afro-Peruvian Peoples, Ecology and the Environment, which prepared a preliminary opinion on the Bill concerning the right to prior consultation. The Committee notes that sections 5–7 of the Bill refer to the persons covered by the Bill and that section 7 in particular refers to the criteria for identification, namely: direct descent from original peoples; lifestyles and spiritual and historic links with the territory that they occupy; own social institutions and customs; different cultural patterns and ways of life from those of other sections of the population. The Committee notes that the Government in its comments on the Bill concerning the right to prior consultation, set out in Official Letter No. 142‑2010-DP/SCM opposes the inclusion of the Andean and coastal–rural communities in the definition of indigenous peoples (observation No. 6). The Committee recalls that in previous comments it noted the Government’s indication that section 2 of Act No. 28945 concerning the National Institute of Andean, Amazonian and Afro-Peruvian Peoples refers to the Andean, Amazonian and Afro-Peruvian peoples and that rural communities and native communities are included in the recognition of their ethnic and cultural rights as communities similar to indigenous peoples, with emphasis on the social, political and cultural aspects, which coincides with the provisions of articles 89 and 149 of the Constitution of the Republic. The Committee recalls that it emphasized the need for indigenous communities to be covered by the Convention regardless of their designation. The Committee also notes that Article 1 of the Convention refers to “descent” and is concerned that the reference to “direct descent” in the draft Act may be too restrictive. Recalling the need to ensure that the criteria for identification of the indigenous peoples are unified, in consultation with the indigenous peoples themselves, the Committee requests the Government to ensure that the Bill on the right of indigenous and original peoples to prior consultation ensures that these peoples fully enjoy the protection established in the Convention, regardless of their designation, and to provide information on any developments in this respect. The Committee also requests the Government to indicate the progress made in Parliament in the adoption of the draft framework Bill concerning the indigenous or original peoples of Peru.

Article 7. Participation. In its previous observation, the Committee urged the Government to take the necessary steps to bring national law and practice into conformity with Articles 2, 6, 7 and 15 of the Convention, taking into account the right of peoples covered by the Convention to decide on their own priorities and participate in national and regional development plans and programmes. The Committee notes the statement by the CGTP that no standards or institutions have been established to enable implementation of the right of indigenous peoples to decide on their own priorities for development, nor have any forums for dialogue in this area been opened. The Committee notes the Government’s indication that the most significant measure is the dialogue conducted in the context of the National Coordinating Group, which had the full participation of the Amazonian communities. The Committee requests the Government to continue to supply information on the measures taken as a result of the dialogue conducted in the context of the National Coordinating Group for the Development of the Amazonian Peoples, and on their implementation and impact, and also on any other plan or programme adopted for the benefit of other indigenous communities or peoples. The Committee also requests the Government to indicate the measures adopted with a view to aligning national law and practice with the Convention in order to guarantee the right of indigenous peoples to decide on their own priorities and participate in national and regional development plans and programmes.

National development plans, programmes and projects. The Committee notes that the Executive Authority, in its observations on the Bill concerning the right to prior consultation (Official Letter No. 142-2010-DP/SCM), objects to the fact that section 2 provides that consultations should also be held with respect to national and regional development plans, programmes and projects which directly affect the collective rights of the indigenous peoples and maintains that the Convention does not establish the obligation of consultation with respect to national and regional development plans, programmes and projects, which would extend the scope of the Convention in an unnecessary and inappropriate way, and this could paralyse the execution of important infrastructure works for the country. Observing that Article 7 establishes that the peoples concerned shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly, the Committee requests the Government to indicate the manner in which the participation provided for in the Convention is ensured.

Impact studies and environmental protection. In its previous comments, the Committee asked the Government to provide information on the measures taken, in cooperation with the indigenous peoples, to protect and preserve the environment of the territories which they inhabit, in accordance with Article 7(4) of the Convention, including information on coordination between the Energy and Mining Investment Supervisory Body (OSINERGMIN) of the Ministry of Energy and Mines and the Environmental Evaluation and Control Agency (OEFA) of the Ministry of the Environment. The Government indicates that the Ministry of Energy and Mines takes care of the promotion of investments while the supervision of mining and energy projects comes under the responsibility of the Ministry of the Environment, for which reason this function was then transferred to the OEFA.

The Committee also notes the Government’s indication that: (1) the Regulations concerning public consultation and participation regarding activities related to oil, gas and electricity (Supreme Decree No. 012-2008-EM and Ministerial Decision No. 223-2010-MEM/DM) provide for public consultation and participation with regard to the preparation of environmental studies and also provide for citizen’s monitoring and supervision mechanisms subsequent to the approval of such studies in order to involve the indigenous peoples and the population in environmental protection; (2) the special regime for the administration of communal reserves approved by Administrative Decision No. 019-2005-INRENA-IANP provides for a mechanism of coordination with the indigenous peoples for the safeguarding of protected natural areas; (3) tripartite dialogue has been conducted in relation to oil and gas activities in the Peruvian rainforest aimed at protecting the environment of the Department of Madre de Dios; (4) the development of a national forest conservation programme has been approved, in the context of which 67 consultation sessions have been held with the Ashaninkas native communities in the central rainforest; and (5) the project on mitigation and adaptation to climate change for the protection of areas of the central rainforest has been approved, with funding provided for a programme of sustainable economic activities with the indigenous peoples of the area. The Committee also notes that Supreme Decree No. 002-2009-MINAM approves the Regulations on transparency, access to public information on the environment and public participation and consultation in environmental matters, which provide for a mechanism for the participation of citizens in the determination and application of policies relating to the environment, in the process of public decision-making on environmental matters, and on their execution and supervision, and that dialogue with civil society shall be sought in decisions and actions relating to environmental management (section 21). The consultation mechanisms may also assume various forms: participatory workshops, public hearings, opinion surveys, suggestion boxes, environmental, regional and local commissions, technical groups and management committees, and these must be held in Spanish and in the predominant language of the place concerned (section 29). The draft environmental study must also be drawn up in Spanish or in the language of the location concerned, be easy to understand and mention the types of impact which have been identified and the impact mitigation or compensation measures which have been established (section 34). The Committee welcomes this information in view of the fact that the Convention requires the establishment of genuine dialogue between the parties concerned to enable concerted solutions to be sought and, if these requirements are fulfilled, consultations may play a decisive role in the prevention and settlement of disputes. The Committee requests the Government to continue to supply information on all the measures taken, in cooperation with the indigenous peoples, to protect and preserve the environment of the territories which they inhabit. The Committee also requests the Government to provide information on the specific application in practice with regard to the indigenous peoples of Supreme Decree No. 002-2009-MINAM concerning citizen’s participation and consultation in environmental matters and of the sectoral legislation concerning citizen’s participation, and to indicate whether environmental impact studies also evaluate the social, spiritual and cultural impact of development activities on the indigenous peoples, as provided for in Article 7(3) of the Convention.

Article 14. The Committee recalls that, in its previous comments, it referred to Legislative Decree No. 994 of 2008 which establishes a special regime for promoting private investment in irrigation projects on unclaimed land (tierras eriazas) with agricultural potential belonging to the State, section 3 of which establishes as state property all unclaimed land with agricultural potential other than such lands for which a title for private or communal ownership is entered in the public records. It also noted that Decree No. 994 of 2008 does not protect the rights of indigenous peoples over traditional lands where there is no official title of ownership. The Committee asked the Government to provide information on the measures taken to determine the lands that the peoples concerned traditionally occupy and to guarantee effective protection of their rights of ownership and possession, including through effective access to appropriate procedures for settling their land claims. The Committee notes that the CGTP and CUT refer to this matter, making reference to Legislative Decree No. 1089 respecting rural occupancy and ownership. The Committee further notes the Government’s indication that the various projects concerning the ownership and registration of lands implemented between 2002 and 2006 benefited 550 farming communities and 55 native communities in the Amazon rainforest, with ownership title having been granted to 84 per cent of all farming communities and 87.42 per cent of native communities by the end of 2009. The Government adds that between 1975 and 2009 a total of 1,447 native communities were recognized, of which 1,265 were granted ownership title to their lands, and that the procedures for demarcating and granting ownership in respect of territory are governed by the Act on native communities and agrarian development of the rainforest regions (Legislative Decree No. 22175) and its implementing regulations (Supreme Decree No. 003‑79-AA). In addition, Act No. 24657 on demarcating and granting ownership of the lands of farming communities provides for the formalization of the right of ownership of native communities with respect to the territories that they occupy. The Government also indicates that Legislative Decree No. 1089 and its regulations (Supreme Decree No. 032‑2008-VIVIENDA) establishes an extraordinary temporary regime to formalize and grant ownership title with respect to rural properties. It also explicitly provides that the mechanism is not applicable in areas located within the territory of farming and native communities. The Committee further notes that the Constitutional Court confirmed that Legislative Decree No. 1089 and its implementing regulations are not applicable to the territories of indigenous peoples, regardless of whether or not they have been officially recognized, as laid down by sections 3(1) and 15 of the regulations (case No. 0022-2009-PI/TC, ruling of 9 June 2010). The Committee requests the Government to take the necessary steps to guarantee the protection of the rights of indigenous peoples to the lands that they traditionally occupy. Noting that Legislative Decree No. 1089 is not applicable to the territories that indigenous peoples traditionally occupy, the Committee requests the Government to supply information on the manner in which the full application of Article 14 of the Convention is ensured, in particular the processes for granting ownership with respect to, and for registration of, lands which are in progress, the areas in respect of which ownership title has been granted, the communities which have benefited, and also to indicate the legislation applicable to these processes. The Committee asks the Government to ensure that section 12 of Legislative Decree No. 994 of 2008, which provides for the possibility of eviction from unclaimed lands in case of invasion or usurpation, does not apply to indigenous peoples who traditionally occupy lands even if they do not have any formal title of ownership.

Article 15. Consultations in relation to natural resources. The Committee notes the existence of preliminary draft regulations for the consultation of indigenous peoples with respect to energy and mining activities drawn up by the Ministry of Energy and Mines, pursuant to the ruling of the Constitutional Court of 30 June 2010 ordering the Ministry to issue, in areas within its competence, special regulations establishing the right of indigenous peoples to consultation, in conformity with the principles and rules established by the Convention (TC No. 05427-2009-PC/TC). The Committee also notes a Bill amending the legislative framework relating to the electricity sector and authorizing the drawing up of a single consolidated text of the regulations governing activities in the electricity sector was transmitted by the Executive Authority to Congress (No. 4335/2010-PE) and the draft Act on forestry which is pending before Congress, in respect of which the Office of the People’s Ombudsman requested consultations to be held. The Committee requests the Government to supply additional information on these Bills and draft regulations and on the progress of their adoption by Parliament, and to indicate the measures taken with a view to submitting them to a process of consultation with the representative organizations of the indigenous peoples.

With regard to the Committee’s previous comments concerning the exploration and exploitation of natural resources affecting the peoples covered by the Convention and the need to ensure the participation and consultation of the peoples affected through their representative institutions in a climate of full respect and trust, the Committee notes that the Government emphasizes the importance of mining for the development of the local economies and the improvement of the living conditions of the inhabitants of the districts in which mining is present. The Government also indicates that it promotes corporate social responsibility, and adds that no mining concessions are granted in the natural areas protected from indirect use and in declared indigenous reserves. The Government points out that mining concessions only grant the right of exploration or exploitation in a preferential manner and the start of activities is subject to environmental authorization and negotiation with the surface owner concerned. The Government adds that once the holder of the concession decides to undertake exploration or exploitation activities, the citizen’s consultation and participation procedure provided for in the regulations on citizen’s participation (Supreme Decree No. 028-2008-EM) must be launched. While noting this information, the Committee observes that the Government does not supply any information on the cases of exploration and exploitation of natural resources affecting indigenous peoples (the Cacataibo people, who live in voluntary isolation, the Awajun and Wampis peoples, and the communities of Chumbivilcas province), to which it referred in its previous comments and which were also cited by the CGTP. The Committee notes that the CGTP refers in its latest comments to the mining exploitation activities taking place in the caserio of San Antonio de Juprog (Quechua-speaking community), in the district of San Marcos in Huaria province, and which, according to various studies which have been conducted, are causing contamination and damaging the health of the inhabitants (contamination through lead, cadmium, zinc and arsenic). According to the CGTP’s comments, there are also plans to displace this community, but none of the measures adopted so far has been the subject of consultations with the indigenous peoples concerned. The CGTP also refers to the concessions granted for oil and gas exploitation in the territory of the Matses people without any prior consultation. The Committee underlines the importance of the duty of the State to undertake prior consultations on any measures that may directly affect the indigenous peoples. The Committee requests the Government to take the necessary steps to conduct consultations with the indigenous peoples referred to above concerning the exploration and exploitation of natural resources in the territories that they occupy or otherwise use (Article 13 of the Convention), before undertaking or authorizing any activity, and to determine whether the interests of those peoples have been harmed and to what extent, with a view to adopting the appropriate impact reduction and compensation measures. The Committee also requests the Government to take the necessary steps to have complaints investigated relating to the contamination of territories occupied by the indigenous peoples and, should the existence of such contamination be proven, to take all the necessary steps to protect the life and safety of the members of these communities.

Participation in benefits. As regards the measures taken to ensure that the peoples concerned participate in the benefits accruing from the exploitation of natural resources on their lands and that they receive fair compensation for any damage suffered as a result of these activities, the Committee notes the Government’s indication that Emergency Decree No. 028-2006 provides that regional and local governments must invest 5 per cent of funds assigned by way of levies to the funding of public investment and social expenditure projects in the communities located within the areas of exploitation. The Committee also notes that Emergency Decree No. 026-2010 increased the planned allocation of funds (10 per cent for regional governments and 5 per cent for local governments). The Committee notes that the Decree provides for the participation of representatives of farming and native communities in the control of decisions for the allocation of these funds. The Government also refers to private initiatives ensuring the participation of indigenous peoples in the benefits and compensation provided for in sectoral legislation. The Government indicates that in the 2007–09 period transfers to the regions under the mining levy amounted to PEN13,300 million (nuevos soles) and the transfers under the standard and extra levies relating to oil and gas amounted to PEN3.9 million. Recalling that Article 15 of the Convention states that the indigenous peoples shall wherever possible participate in the benefits of activities which exploit the resources existing on their lands, the Committee requests the Government to ensure that the planned levies enable such participation in practice and to provide information on the measures taken in this respect and on their real impact on the lives of the indigenous peoples, their development and the areas which they inhabit.

Articles 26 to 29. Education. With regard to the Conference Committee’s request to supply information on the impact on the training of bilingual teachers of Ministerial Decision No. 0017-2007-ED, which establishes the requirement of achieving a minimum mark of 14 out of 20 points to be able to take up training as a bilingual teacher, which might result in indigenous candidates being excluded from the education process, the Committee notes the information supplied by the Government on the legal provisions which regulate education and indicates that the Directorate of Higher Education for Teaching (DESP) governs institutes and schools of higher education for teacher training so that they can make provision for professional teaching careers in bilingual education. The Directorate approves plans for teacher training proposed by the institutions themselves so that they can meet the training needs of their own communities. It also regulates training and approval of proposed curriculum context for higher education geared to teacher training. Five institutes in the Andean region offer training for teachers in primary education. As regards the conditions for entry to teacher training courses, the Government states that, according to the statistics, there was an increase in participation and that students who did not achieve the minimum mark of 14 but scored between 11 and 13.99 points can enrol in the academic foundation course. The Committee requests the Government to continue to supply information on the measures taken and their impact on the numbers of indigenous bilingual teachers who have been trained.

Finally, noting the suggestion of the Conference Committee on the Application of Standards, the Committee of Experts reminds the Government that it may avail itself of technical assistance from the ILO.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2011.]

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 14 of the Convention. Community of Santo Domingo de Olmos. The Committee refers to its previous comments, in which it considered the case of the community of Santo Domingo de Olmos. It noted that Supreme Decree No. 017-99-AG established as uncultivated land (tierras eriazas) 111,565 hectares to which the Olmos community asserts ancestral rights and provided for the land to be registered for the Olmos Special Hydro-Energy Irrigation Project. It further recalls that a constitutional complaint (acción de amparo) filed by the community was ruled inadmissible because the community had not registered or presented a registration certificate. The Committee notes that, in its report of 2008, the Government reiterates that, although the community of Santo Domingo de Olmos now has official legal personality, it has no proper legal representation, which is a prerequisite for filing a land ownership claim to the competent body, the National Agrarian Directorate of the regional government of Lambayeque, and that it is for the community to determine its own legal representation. The Committee again asks the Government to take appropriate steps, in consultation with the community concerned, to identify and remove the obstacles, including the procedural ones, that are preventing the community of Santo Domingo de Olmos from proceeding effectively to claim the lands which it says it has traditionally occupied, in order that it may have access to the procedures prescribed in Article 14, paragraph 3, of the Convention and, as the case may be, obtain effective protection for its rights. The Committee hopes that in its next report the Government will be in a position to provide information on progress made in this regard.

Article 25. Health. The Committee notes the CGTP’s observations concerning Article 25 of the Convention. It recalls that in its comments of 2005 it noted that, according to the Government’s report, the living conditions and health of indigenous peoples were well below the national average and had reached alarming levels. The Committee requests the Government to provide up to date information on measures taken to give practical effect to Article 25 of the Convention.

Articles 26 to 29. Education. In its communication of 2009, the CGTP refers to the National Household Survey carried out in 2007 by the National Statistics and Informatics Institute (INEI), which shows that the learning of Quechua has fallen by 3.3 per cent and the learning of Aymara by 0.5 per cent as compared with the 1993 census. The CGTP states that these percentages indicate that some 20 per cent of the Quechua and Aymara population have stopped learning their languages. Furthermore, Ministerial Resolution No. 0017-2007-ED issued by the Ministry of Education has set a minimum mark of 14 out of 20 to be achieved by indigenous people applying to train as bilingual teachers. It asserts that, as a result of this resolution, indigenous participation in the education process could be eliminated. It further indicates that the entrance examinations for educational institutes take no account of cultural differences and that the marking system overlooks the inter-cultural knowledge of indigenous teachers. In the specific case of bilingual inter-cultural education, the results of the 2009 entrance exams to teacher training institutes show that out of 477 candidates for bilingual primary education, only four were accepted. The Committee recalls that according to Articles 26 and 27 of the Convention, States have an obligation to ensure that members of indigenous peoples have the opportunity to acquire education at all levels on an equal footing with the rest of the national community and, at the same time, to develop education programmes, in cooperation with the peoples concerned, that incorporate their histories, their knowledge and technologies, their value systems and their further social, economic and cultural aspirations. Article 27(2) of the Convention also provides that the competent authority shall ensure the training of members of these peoples and their involvement in the formulation and implementation of education programmes. The Committee requests the Government to provide information on the measures taken to give practical effect to Articles 26 and 27 of the Convention and invites it to respond to the CGTP’s observations.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee takes note of the discussion that took place in the Conference Committee on the Application of Standards in June 2009 and the conclusions of the Conference Committee. It also notes the observations of 23 July 2009 by the General Confederation of Workers of Peru (CGTP), which were sent to the Government on 31 August 2009. The CGTP’s observations were prepared with input from the Inter-Ethnic Association for the Development of the Peruvian Rainforest (AIDESEP), the National Coordinating Committee for Communities Affected by Mining (CONACAMI), the National Agrarian Confederation (CNA), the Peasant Farmers’ Confederation of Peru (CCP), and non-governmental organizations belonging to the Indigenous Peoples Working Group of the National Coordinating Committee on Human Rights. The Committee further recalls that in its previous observation it did not address the whole of the Government’s report because of its late arrival. It will accordingly examine it as appropriate in this observation, together with the latest report.

The Committee notes that the Conference Committee indicated that the Committee has raised concerns in comments it has been making for years about persistent problems in applying the Convention in a number of areas, and went on to express grave concern at the incidents in Bagua and urge all parties to refrain from violence. It observed that the present situation in the country was linked to the adoption of legislative decrees relating to the exploitation of natural resources on lands traditionally occupied by indigenous peoples, and urged the Government immediately to establish a dialogue with indigenous peoples’ representative institutions in a climate of mutual trust and respect. It called on the Government to establish mechanisms for dialogue as required by the Convention in order to ensure systematic and effective consultation and participation. It further urged the Government to remove the ambiguities in the legislation as to the identification of the peoples covered by it, and to take the necessary steps to bring national law and practice into line with the Convention. In this connection, the Conference Committee asked the Government to elaborate a plan of action in consultation with the representative institutions of the indigenous peoples.

The Committee shares the grave concerns of the Conference Committee about the incidents in Bagua in June 2009 and considers that they are related to the adoption, without consultation or participation, of decrees affecting the rights of peoples covered by the Convention to their lands and natural resources. The Committee notes that both the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people and the United Nations Committee on the Elimination of Racial Discrimination have likewise expressed such concern at the situation of the indigenous peoples in Peru (see respectively, A/HRC/12/34/Add.8, 18 August 2009, and CERD/C/PER/CO/14-17, 31 August 2009). The Committee recalls that the Conference Committee called on the Government to make further efforts to guarantee indigenous peoples’ human rights and fundamental freedoms without discrimination in accordance with its obligations under the Convention. The Committee is of the view that a prompt and impartial inquiry into the events in Bagua is essential to ensuring a climate of mutual trust and respect between the parties, a prerequisite for establishing genuine dialogue in the search for agreed solutions, as the Convention requires. The Committee accordingly urges the Government to take the necessary steps to have the incidents of June 2009 in Bagua effectively and impartially investigated, and to provide specific information on the matter.

Article 1 of the Convention. Peoples covered by the Convention. The Committee notes that in its report the Government states, as it did during the discussion in the Conference Committee, that a draft Framework Act on Indigenous or Original Peoples of Peru has been prepared, which sets out a definition of indigenous or original peoples, with a view to removing ambiguities from the national legislation regarding identification of the peoples covered. The Committee notes that section 3 of the draft contains such a definition, whereas section 2 states that indigenous or original peoples of Peru include “the so-called peasant communities and native communities; as well as indigenous people in a situation of isolation and a situation of initial contact; it likewise applies to those who identify themselves as descendants of the ancestral cultures settled in Peru’s coastal, mountain and rainforest areas”. The Committee notes that, although the definition in section 3 of the draft reproduces the objective elements of the Convention’s definition, it makes no reference, unlike section 2, to the fundamental criterion of self-identification. The Committee also notes that the objective elements of the definition in the abovementioned draft include the criterion that these peoples “are in possession of an area of land”, which does not appear in the Convention. The Committee would point out in this connection that Article 13 of the Convention stresses the special importance for these peoples of the cultures and spiritual values of “their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use”. The Committee also draws the Government’s attention to the fact that Article 14(1) of the Convention, and in particular the expression “the lands which they traditionally occupy”, has to be read in conjunction with Article 14(3) on land claims, in that the Convention likewise covers situations in which indigenous and tribal peoples have recently lost occupation of their lands or have been recently expelled from them. The Committee accordingly urges the Government, in consultation with the indigenous peoples, to align the definition in the draft Framework Law on Indigenous or Original Peoples of Peru with the Convention. Please also supply information on the manner in which effective consultation and participation is ensured with indigenous peoples in the preparation of the abovementioned draft. Furthermore, the Committee again asks the Government to provide information on the measures taken to ensure that all those covered by Article 1 of the Convention are likewise covered by all provisions of the new legislation and enjoy the rights set forth therein on an equal footing.

Article 2 and 6. Coordinated and systematic action and consultation. Plan of action. With regard to the Conference Committee’s request for a plan of action to be drawn up in consultation with the representative institutions of indigenous peoples, the Committee notes the Government’s statement that proposed guidelines have been submitted for the development of a plan of action aimed at responding to the main observations put forward by the ILO’s supervisory bodies. Although the report affirms that the plan of action must be formulated in collaboration with the representatives of indigenous peoples, the Committee notes that there is no information on the manner in which participation of the indigenous peoples in this process is to be established, and that a “meeting with the representatives of the indigenous organizations” is envisaged with regard to the implementation phase of the abovementioned plan.

The Committee also notes that several bodies have been set up whose purpose, according to the Government’s report, is to establish dialogue with the indigenous peoples of the Amazonian and Andean areas. The Committee notes that, in March 2009, a Bureau for Ongoing Dialogue between the State and the Indigenous Peoples of the Amazonian Area of Peru was established and that, according to section 2 of Supreme Decree No. 002-2009-MIMBES establishing the Bureau, it “may” (podrá) include representatives of indigenous peoples. It also notes the Multisectoral Committee to deal with indigenous problems in the Amazonian area (Supreme Decree No. 031-2009-PCM of 19 May 2009), and observes that the minutes of the opening and first ordinary session of the Committee make no mention of indigenous representatives. It further notes the Bureau for Comprehensive Development of Andean Peoples (RS 133-2009-PCM, of 24 June 2009), the Bureau for Dialogue on the Comprehensive Development of Andean Peoples in Extreme Poverty (RS 135-2009-PCM of 26 June 2009) and the National Coordinating Group for the Development of Amazonian Peoples, which is responsible for formulating a comprehensive sustainable development plan for these peoples (Supreme Resolution No. 117-2009-PCM of 26 June 2009). With regard to the latter body, the Committee notes that it set up four working group to work on the composition of the Commission of Inquiry into the Bagua incidents, the revision of the legislative decrees, mechanisms for consultation and a national development plan for the Amazon region. The Committee likewise notes the concern expressed by the People’s Ombudsperson about the status of the dialogue process established within the abovementioned Group.

The Committee has insufficient information to assess the level of participation ensured for indigenous peoples in the various bodies mentioned above. It nonetheless considers that the information supplied appears to indicate that, at least in some cases, the participation of indigenous peoples through their legitimate representatives and dialogue between the parties is not effective. The Committee also expresses concern that the proliferation of bodies with mandates that sometimes overlap may hamper the development of a coordinated and systematic response to the problems of protecting and ensuring the rights of indigenous peoples established in the Convention. The Committee urges the Government to ensure full and effective participation and consultation of the indigenous peoples through their representative institutions in the preparation of the abovementioned plan of action, in accordance with Articles 2 and 6 of the Convention, so as to address in a coordinated and systematic manner outstanding problems concerning the protection of the rights of the peoples covered by the Convention, and to align law and practice with the Convention. It also asks the Government to provide information on this matter and on the work of the various bodies mentioned above, indicating how the participation of the peoples concerned and the coordination of the activities of these bodies are ensured, as well as coordination between the work of these bodies and the preparation of the plan of action. Please provide a copy of the plan of action as soon as it is finalized.

Articles 2 and 33. INDEPA. The Committee refers to its previous observation, in which it noted the CGTP’s assertion that the National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) lacked real authority. The Committee notes from the CGTP’s 2009 communication that although the administrative autonomy of INDEPA has been restored, indigenous participation in its Governing Council has not been re-established and no concerted policies have been developed on any issues affecting the indigenous peoples. The CGTP further asserts that there is no forum for cooperation on such policies. The Committee notes the Government’s statement that Ministerial Resolution No. 277-2009-MIMDES establishes a sectoral committee responsible for drafting new “regulations on the organization and functions of INDEPA”. The Committee notes that the sectoral committee is composed of the Vice-Minister for Social Development of the Ministry for Women and Social Development (MIMDES), the Executive President of INDEPA and the Director-General of the General Office of Planning and Budget of MIMDES, and that it has the authority to invite specialists and representatives from various institutions in the public and the private sectors. The Committee notes that the abovementioned Resolution contains no express reference to the participation of indigenous peoples. It further notes that the reform of INDEPA is likewise envisaged in the guiding framework for development of the abovementioned plan of action. The Committee reminds the Government that indigenous peoples must participate in designing mechanisms for dialogue and recalls the concerns raised previously about coordination between the various bodies and activities. The Committee urges the Government to ensure effective participation by the representative institutions of indigenous peoples in the design and implementation of mechanisms for dialogue and the other mechanisms needed for the coordinated and systematic administration of programmes affecting indigenous peoples, including the reform of INDEPA. It also asks the Government to ensure that such mechanisms have the necessary resources to perform their functions properly and have independence and real influence in the decision-making process. Please provide information on the measures taken in this regard.

Articles 6 and 17. Consultation and legislation. In its previous observation, noting that Legislative Decrees Nos 1015 and 1073 were adopted without consultation, the Committee expressed concern that communications are still being received alleging a lack of prior consultation on the measures provided for in Articles 6 and 17(2) of the Convention, and urged the Government to take steps without further delay, with the participation of the indigenous peoples, to devise appropriate mechanisms for participation and consultation. The Committee notes that in its communication of 2009 the CGTP states that no mechanisms have been established for prior consultation, so the indigenous peoples are unable to have a say in specific decisions that affect them. The Committee notes that Legislative Decrees Nos 1015 and 1073 setting conditions for disposing of communal land were repealed by Act No. 29261 of September 2008, and that Legislative Decrees Nos 1090 and 1064 approving, respectively, the Forests and Wild Fauna Act and the Legal Regime for the Exploitation of Lands for Agrarian Use were repealed by Act No. 29382 of June 2009. The Committee notes that, according to the Government, the working groups set up within the National Coordinating Group for the Development of Amazonian Peoples have responsibility for revising the legislative decrees and dealing with the issue of prior consultation. The Committee understands, however, that the issue of consultation is likewise addressed in the draft Framework Act on Indigenous or Original Peoples of Peru. It also takes note of a Bill on consultation, No. 3370/2008-DP of 6 July 2009, submitted to Congress by the People’s Ombudsperson. The Committee stresses the need for indigenous and tribal peoples to participate and be consulted before the adoption of legislative or administrative measures likely to affect them directly, including in the drafting of provisions on consultation processes, as well as the need for provisions on consultation to reflect among other things the elements set forth in Articles 6, 7, 15 and 17(2), of the Convention. The Committee also refers the Government to its previous comments on the need for a coordinated and systematic approach. It urges the Government to establish, with the participation of the peoples concerned, the mechanisms for participation and consultation required by the Convention. It also asks it to send information on the manner in which it ensures that the peoples concerned participate in and are consulted about the formulation of provisions governing consultation. It requests the Government to provide information on any progress made in this regard. The Committee reminds the Government that the Conference Committee welcomed the Government’s request for technical assistance and encourages it to pursue this course.

Articles 2, 6, 7, 15 and 33. In its previous observation, the Committee noted that the communications received referred to many serious situations of conflict connected with a dramatic increase in the exploitation of natural resources on lands traditionally occupied by indigenous peoples, without participation or consultation. The Committee notes that, in its communication of 2009, the CGTP refers to a statement by the People’s Ombudsperson to the effect that there has been an increase in social and environmental conflicts in the country and that they are concentrated in indigenous areas and are related to access and control of natural resources. The CGTP asserts that the Peruvian State persists with a “top-down” approach, imposing its projects in the Amazonian and Andean areas. It asserts that development policies lack sufficient guarantees to protect the environment for the indigenous peoples and that the Ministry of Environment lacks the authority to intervene in energy and mining policies. It refers to a ruling by the Constitutional Court (file No. 03343-2007-PA-TC), in proceedings brought by the regional government of San Martín against various petroleum enterprises and the Ministry of Energy and Mines regarding hydrocarbon projects being carried out in a regional conservation area. In its ruling, taking account of the provisions of the Convention, the Court reaffirmed the right of indigenous peoples to be consulted before the start-up of any project that might affect them, and also referred to article 2(19) of the Constitution which requires the State to protect ethnic and cultural plurality in the Nation (paragraph 28). The CGTP furthermore refers to a number of “emblematic instances” of exploration and exploitation of natural resources affecting indigenous peoples, such as the Cacataibo people, who live in voluntary isolation, the Awajun and Wampí peoples and the communities of Chumbivilcas province.

The Committee notes the Government’s statement that the Peruvian State construes consultation as “processes whereby points of view are exchanged” and has held a series of socialization workshops. It also notes that the Government refers to Decree No. 012-2008-MEM (regulations on citizens’ participation in hydrocarbon activities), according to which the purpose of consultation is “to reach better understanding of the scope of the project and its benefits”, which is much narrower than what the Convention provides.

The Committee wishes to point out that Article 6 of the Convention provides that the consultations shall be undertaken with the objective of achieving agreement or consent to the proposed measures. Although Article 6 of the Convention does not require consensus in the process of prior consultation, it does require, as the Committee underlined in its general observation of 2008 on the Convention, the form and content of consultation procedures and mechanisms to allow the full expression of the viewpoints of the peoples concerned, “so that they may be able to affect the outcome and a consensus could be achieved”. The Committee wishes to underscore that the Convention requires a genuine dialogue to be established between the parties concerned to facilitate the quest for agreed solutions, and emphasizes that, if these requirements are met, consultation can play a decisive role in the prevention and settlement of disputes. The Committee further points out that meetings solely for the purpose of information or socialization do not meet the requirements of the Convention.

The Committee considers that Supreme Decree No. 020-2008-EM regulating citizens’ participation in the mining subsector has similar limitations. Noting that the Decree envisages the possibility of citizens’ participation after a mining licence has been granted, the Committee is of the view that it does not meet the requirements of the Convention. The Committee urges the Government to take the necessary steps to bring national law and practice into line with Articles 2, 6, 7 and 15 of the Convention, taking into account the right of the peoples covered by the Convention to decide on their own priorities and participate in national and regional development plans and programmes. Recalling that the Conference Committee welcomed the Government’s request for technical assistance, the Committee encourages the Government to pursue that course. It also asks it to:

(i)    suspend the exploration and exploitation of natural resources which are affecting the peoples covered by the Convention until such time as the participation and consultation of the peoples concerned is ensured through their representative institutions in a climate of full respect and trust, in accordance with Articles 6, 7 and 15 of the Convention;

(ii)   provide further information on the measures taken, in cooperation with the indigenous peoples, to protect and preserve the environment of the territories they inhabit, in accordance with Article 7(4) of the Convention, including information on coordination between the Energy and Mining Investment Supervisory Body (OSINERGMIN) of the Ministry of Energy and Mines and the Environmental Evaluation and Control Agency (OEFA) of the Ministry of Environment; and

(iii) provide a copy of Supreme Decree No. 002-2009-MINAM of 26 January 2009, regulating the participation and consultation of citizens in environmental matters.

With regard to the benefits of extraction activities, the Committee notes the information supplied by the Government concerning a system of mining royalties and a mining tax. It also notes that in its communication of 2009, the CGTP indicates that this system allows the benefits to be distributed within the state apparatus with no benefits going directly to the communities affected. The Committee requests the Government to provide information on the specific measures taken to ensure that the peoples concerned participate in the benefits accruing from the exploitation of natural resources in their lands and receive fair compensation for any damage they may sustain as a result of such activities.

Article 14. Legislative Decree No. 994. The Committee notes the observations made by the CGTP in its communication of 2009 concerning Legislative Decree No. 994 “which promotes private investment in irrigation projects to broaden the agricultural horizon”. The Committee notes in particular that the abovementioned Decree lays down a special regime for promoting private investment in irrigation projects on unused land (tierras eriazas) with agricultural potential belonging to the State. The Committee notes that section 3 of the Decree establishes as state property all tierras eriazas with agricultural potential other than such lands for which a title for private or communal ownership is entered in the public records. The Committee notes with concern that this provision does not establish the rights of indigenous peoples over traditional lands where there is no official title of ownership. The Committee recalls that, in accordance with the Convention, traditional occupation confers a right to the land regardless of whether or not such right has been recognized and that, consequently, Article 14 of the Convention protects not only the lands over which the peoples concerned already have title of ownership but also the lands they traditionally occupy. The Committee urges the Government to take the necessary steps to determine the lands that the peoples concerned traditionally occupy and to guarantee effective protection of their rights of ownership and possession, including through effective access to appropriate procedures for settling their land claims. Please provide information on the measures adopted to this end.

Article 31. Educational measures. In its previous comments, the Committee expressed its concern at a number of statements which could give rise to prejudice or misconceptions regarding indigenous peoples. In this regard, the Committee expresses concern at the CGTP’s statement in its communication of 2009 that a discriminatory and aggressive attitude towards indigenous peoples on the part of the public authority continues to be noted. The Committee urges the Government to take educational measures as a matter of urgency in all sectors of the national community so as to eliminate any prejudice there may be about the peoples covered by the Convention, in accordance with Article 31.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2010.]

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes a communication from the General Confederation of Workers of Peru (CGTP) concerning Peru’s compliance with the Convention, enclosing the Alternative Report of 2008 on the application of the Convention in Peru received on 5 August 2008 and sent to the Government on 1 September 2008. This report was drawn up with the participation of the Inter-ethnic Association for the Development of the Peruvian Rainforest (AIDESEP), the Peasant Farmers’ Confederation of Peru (CCP), the National Agrarian Confederation (CNA), the National Coordinating Committee for Communities affected by Mining (CONACAMI), the Regional Association of the Indigenous Peoples of the Central Rainforest (ARPI), the Ucayali AIDESEP Regional Organization (ORAU) and non-governmental organizations belonging to the Indigenous Peoples Working Group of the National Coordinating Committee on Human Rights. In its observation of 2007, the Committee also noted another communication from the CGTP which was sent to the Government. The Committee notes that the Government did not send any comments with regard to these communications.

Article 31 of the Convention. Peoples with whom no contact has been established. The Committee notes that, according to the communication from the CGTP, the Government has adopted a policy and attitude which disregards or ridicules the nature, rights and claims of indigenous peoples tending to mislead and misinform public opinion. The communication refers to various quotations from the President of Peru, referring in particular to a statement he is alleged to have made according to which “against the oil industry, they have created the figure of the “unconnected” forest native, i.e. unknown but presumed to exist ...”. The communication indicates that it is not the indigenous organizations which have created this figure belonging to the Amazonian population: the Peruvian State itself has recognized them and has undertaken to defend their rights in various legal provisions, which are quoted in the communication. The Committee expresses its concern at statements which could give rise to prejudice or misconceptions with regard to indigenous peoples, and reminds the Government that Article 31 of the Convention states that “Educational measures shall be taken among all sections of the national community ..., with the object of eliminating prejudices that they may harbour in respect of these peoples. To this end, efforts shall be made to ensure that history textbooks and other educational materials provide a fair, accurate and informative portrayal of the societies and cultures of these peoples.” The Committee requests the Government to apply fully this provision and to provide information on the measures taken in this regard.

Part VIII of the report form. The Committee notes the CGTP’s statement that the Alternative Report was drawn up with the participation of the abovementioned indigenous organizations, culminating in three meetings in Lima on 30 June, 21 July and 4 August 2008, that a proposal to participate was sent to the Ministry of Labour on 19 May 2008 and it was invited to meetings in July and August 2008 but did not attend. The Government states that it had planned to hold a workshop in the third week of August 2008 to present the draft report with the participation of all the most representative indigenous organizations and with technical and financial support from the ILO, but this was unable to take place because of events that were beyond its control. The Government wishes to emphasize that those events were protests and demonstrations held in the Amazon region in relation to rulings on land ownership. In addition, the National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) was transferred to another ministry. Noting that the organizations’ view of the application of the Convention diverges completely from the Government’s view, the Committee considers that it would be highly desirable for the Government to consult the principal indigenous organizations in good time for the purposes of preparing its next report, and requests the Government to provide information in this regard.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes a communication from the General Confederation of Workers of Peru (CGTP) concerning Peru’s compliance with the Convention, enclosing the Alternative Report of 2008 on the application of the Convention in Peru received on 5 August 2008 and sent to the Government on 1 September 2008. This report was drawn up with the participation of the Inter-Ethnic Association for the Development of the Peruvian Rainforest (AIDESEP), the Peasant Farmers’ Confederation of Peru (CCP), the National Agrarian Confederation (CNA), the National Coordinating Committee for Communities affected by Mining (CONACAMI), the Regional Association of the Indigenous Peoples of the Central Rainforest (ARPI), the Ucayali AIDESEP Regional Organization (ORAU) and non-governmental organizations belonging to the Indigenous Peoples Working Group of the National Coordinating Committee on Human Rights. The Committee also notes two communications from the General Union of Grau Tacna Commercial Centre Wholesalers and Retailers (SIGECOMGT), one dated 17 September 2007 and sent to the Government on 27 September 2007, the other dated 28 March 2008 and sent to the Government on 2 May 2008. In addition, in its observation of 2007, the Committee noted another communication from the CGTP and a communication from SIGECOMGT which were sent to the Government, but which the Committee did not examine because of the Government’s indication that, owing to the severe earthquake which occurred in Peru on 15 August 2007, it had not been in a position to supply information, and for that reason the Committee will examine both of these communications on this occasion. The Committee also notes the indication in the Government’s report, received on 17 October 2008, that it had received the alternative report from the CGTP on 5 August. However, the Government has not yet provided comments on the communications. Because of the late arrival of the Government’s report, the Committee will consider some items in the report relating to the communications and will examine it in detail in 2009, together with the reply to the present comments.

Article 1 of the Convention. Peoples covered by the Convention. The communications indicate that various categories are referred to in Peru to designate and recognize indigenous peoples. Consequently, it is unclear to whom the Convention applies. They explain that the legal term “indigenous peoples” is not found in the Constitution, and that the legal term established by the colonial authorities, and recognized by the Constitution and most of the legislation is the word “community”. There are both rural and native communities in the country, with 6,000 communities registered at present. The terms “native communities”, “rural communities” and “indigenous peoples” are used inconsistently sometimes to mean similar or different things, depending on the laws in question. The communications indicate that the extent to which the Convention is applied varies. For example, in the case of “native communities”, positive measures have been adopted to enhance the right to consultation. However, there has been little progress in the application of the Convention to rural communities of the coastal and highland regions.

The Committee notes the Government’s statement that section 2 of the regulations relating to Act No. 28945 concerning the National Institute of Andean Peoples establishes the definitions applying to the Andean, Amazonian and Afro-Peruvian peoples. The Committee notes the Government’s indication that peasant farmers’ communities and native communities are placed on a similar footing to indigenous peoples with regard to the recognition of their ethnic and cultural rights, with emphasis on the social, political and cultural aspects. This appears to be a positive statement as it confirms indications from previous reports from the Government and comments from the Committee to the effect that indigenous communities are covered by the Convention irrespective of what they are called. However, there appear to be inconsistencies in the application of the Convention as regards its coverage. The Committee considers that, where rural communities meet the requirements of Article 1(1) of the Convention, they must enjoy the full protection of the Convention regardless of differences from or similarities to other communities and irrespective of what they are called.

The Committee has been referring to this matter for a number of years and in its direct request of 1998 the Committee suggested “that the Government might develop harmonized criteria for the populations which may be covered by the Convention, since the various definitions and terms used may give rise to confusion between rural, indigenous and native populations and those living in the highlands, the forest and cleared land”. The Committee notes from the communications received that there seem to be different degrees of application of the Convention, according to the name given to the community. It also observes that the inconsistent terminology used in different laws creates confusion and that the different names or characteristics of the peoples concerned are irrelevant if they come within the scope of Article 1(1), of the Convention. The Committee reiterates that the concept of “indigenous peoples” is broader than that of the communities to which such peoples belong and that, whatever such communities are called, it is irrelevant for the purposes of the application of the Convention, as long as “native”, “rural” or other communities are covered by Article 1(1)(a) or (b), of the Convention. Therefore the provisions of the Convention should be applied to all of them equally. This does not imply that specific action targeted at specific needs of certain groups cannot be taken. This is the case, for example of communities with which no contact has been established or those living in voluntary isolation. The Committee again draws the Government’s attention to the fact that the various terms used and the difference in legislative treatment cause confusion and make it difficult to apply the Convention. The Committee therefore requests the Government once again, in consultation with the representative institutions of the indigenous peoples, to establish harmonized criteria to define the coverage of the Convention so as to avoid the confusion resulting from the various definitions and names given to them, and to provide information in this respect. The Committee also urges the Government to take the necessary measures to guarantee that all the peoples referred to in Article 1 of the Convention are covered by all of the Convention’s provisions and enjoy the rights set out therein on an equal footing, and to provide information in this respect.

Articles 2 and 33. Coordinated and systematic action. The CGTP alleges blatant and systematic lack of compliance with Article 33 of the Convention with regard to the State’s obligation to ensure that agencies or other appropriate mechanisms exist to administer the programmes affecting the peoples concerned and that they have the means necessary for the proper fulfilment of the functions assigned to them. It states that the National Institute of Andean, Amazonian and Afro-Peruvian Peoples (INDEPA) was established in 2005, by means of Act No. 28.495, as a participatory body with administrative and budgetary autonomy, whose principal mandate is to design national policies for the promotion and protection of indigenous and Afro-Peruvian peoples, and supervise and coordinate their implementation. The CGTP states that although there are indigenous representatives on the Executive Board of the INDEPA, the disparity in representation is clear, meaning that decisions tend to be imposed by the State. Furthermore, most decisions are taken in any case without the participation of the Board. The trade union refers to the lack of real power of INDEPA within the Ministry for Women’s Affairs and Social Development, undermining its functionality and undermining the effective participation of the indigenous representatives in the decision-making process. The CGTP asserts that INDEPA must be strengthened. The Committee reiterates its previous statements that Articles 2 and 33 are complementary, and that to ensure the correct application of Article 2, which states that “governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples”, it is essential that the agencies or other appropriate mechanisms provided for in Article 33 are established. The Convention also provides that measures aimed at applying its provisions shall be formulated in a systematic and coordinated manner, in cooperation with the indigenous peoples. This presupposes the establishment of the appropriate bodies and mechanisms. The Committee requests the Government to establish, with the participation of the indigenous peoples and in consultation with them, the agencies and mechanisms provided for by Article 33 of the Convention, to ensure that such agencies or mechanisms have the means necessary for the proper fulfilment of the functions assigned to them, and to supply information on the measures taken in this regard.

Articles 6 and 17. Consultation and legislation. The Committee notes the adoption on 19 May 2008 of Legislative Decree No. 1015, amending the number of voters required for disposing of communal land. The CGTP states that, in the face of widespread criticism, this Decree was amended on 28 June 2008 by Legislative Decree No. 1073, which also eases conditions for disposing of communal land, but there was no consultation on the adoption of such legislation. The Committee draws the Government’s attention to the fact that, according to Article 6(1)(a) of the Convention, governments shall consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly, and, according to Article 17(2), the peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community. The Committee recalls that the Governing Body referred to a similar question in 1998 in relation to Act No. 26845 (GB.273/14/4) and stated that “under Article 17(2) of the Convention, the peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community. In this case, in particular, the Committee notes that there is no indication that consultations have been held on the implications of these measures to establish title with the people concerned as provided by the Convention”. The same report also reminded the Government of its obligation to hold consultations under the terms of Article 17(2), including on the scope and implications of the proposed measures. The Committee expresses its concern at the fact that, ten years after the publication of the aforementioned Governing Body report, communications are still being received alleging a lack of prior consultation with respect to the adoption of the measures provided for in Articles 6 and 17(2) of the Convention. The Committee urges the Government to take steps, without further delay, with the participation of the indigenous peoples, to establish appropriate consultation and participation mechanisms and to consult the indigenous peoples before the adoption of the measures referred to in Articles 6 and 17(2) of the Convention, and to provide information in this respect.

The Committee notes the statement by SIGECOMGT that draft Acts Nos 690 and 840 are being examined by Congress, relating to the promotion of private investment in the lands of Amazonian indigenous peoples, without their consultation. The Committee requests the Government to ensure that consultations are held with regard to these projects and to supply information on the consultations held.

Articles 2, 6, 7, 15 and 33. Participation, consultation and natural resources. The communications refer in detail to numerous serious situations of conflict connected with a dramatic increase in the exploitation of natural resources, without participation or consultation, on lands traditionally occupied by indigenous peoples. Mining accounted for less than 3 million hectares in 1992 but increased to 22 million hectares in 2000, and 3,326 out of 5,818 communities recognized in Peru were affected. The “emblematic cases” referred to include the Río Blanco mining project. The CGTP indicates that the underlying discussion in Río Blanco relates to the kind of development desired by the population, which drew up a sustainable alternative proposal for the region entitled “Vision for a shared and sustainable future” which did not include mining but the Government ignored this initiative. With regard to the 75 million hectares of oil and gas deposits in Peruvian Amazonia, more than 75 per cent are covered by oil and gas sites imposed on indigenous lands. The communications refer in detail to numerous cases of exploitation of natural resources without participation or consultation, and attach a December 2006 report from the Office of the People’s Ombudsperson entitled “Socio-environmental disputes as a result of mining and allied activities in Peru”, which raises the alarm with regard to the gravity of the situation, indicating that the indigenous and peasant peoples are those most affected in those cases. It also mentions that those peoples are not always opposed to exploration or exploitation but merely wish to have a share in the benefits of such activities.

The communication sent by the CGTP refers to the recent Decree No. 012-2008-EM issuing regulations on people’s participation in oil and gas sector activities. It claims that this Decree gives legal backing to the monitoring activities promoted by the companies but that the same backing does not exist for community monitoring, thereby creating conditions for manipulation and co-option. With respect to forestry exploitation, it states that although Act No. 27308 formally protects the rights of indigenous peoples, the latter have received no technical or economic support in practice, effective policies and controls are lacking, and forestry concessions have been superimposed on communal lands, with 18 cases in Ucayali. The communication from SIGECOMGT refers to various cases of presumed violations of the Convention in relation to the extraction of natural resources, consultations and land rights, with serious consequences due to pollution of the environment, particularly water, as a result of mining activities. Particular reference is made to the activities of the Barrick Misquichilca company in Huaraz de Ancash province and the activities of the Newmont mining company in Tacna. With regard to forest resources, 53,000 hectares of the virgin Loreto forest have reportedly been assigned to a concession for reforestation without consultation of the indigenous communities or their participation.

The Government has not sent any reply to these comments but states that, in May 2008, by means of Supreme Decree No. 020-2008-EM of the Directorate-General of Social Management at the Ministry of Energy and Mining, it issued the regulations concerning citizens’ participation in oil and gas sector activities which, according to the report, gives effect to Articles 2, 7, 13, 15 and 33 of the Convention. It states that the adoption of the regulations involved substantial participation of the citizens. It also states that the following legislation has been adopted to this end: Supreme Decree No. 012-2008-EM issuing regulations on the people’s participation in oil and gas sector activities; Supreme Decree No. 015-2006-EM issuing regulations on protection of the environment in relation to the development of activities in the oil and gas sector; and Supreme Decree No. 020-2008-EM issuing environmental regulations in relation to mining activities. Since January 2008, the Ministry of Energy and Mining has been promoting tripartite dialogue meetings with the participation of the Government, the private sector and indigenous leaders in the regions of Madre de Dios, Loreto and Ucayali, and coordinating committees have been established in the last two of these regions. Furthermore, the “National programme for hydrographic basins and land conservation (PRONAMACHS)” of the Ministry of Agriculture makes participation the key element in its strategy.

The Committee notes from the Government’s report that the Government has made some effort with regard to consultation and participation; however, it is concerned that from the communications, drawn up with full participation of the indigenous peoples, and the report from the Office of the People’s Ombudsperson that these efforts appear to be isolated and sporadic and at times not in line with the Convention (for example, information meetings being held rather than consultations). There is a lack of participation and consultation for tackling the numerous disputes connected with the exploitation of resources in lands traditionally occupied by indigenous peoples. The Committee expresses its concern regarding the communications received and the lack of comments on them from the Government. The Committee urges the Government to adopt the necessary measures, with the participation and consultation of the indigenous peoples, to ensure (1) the participation and consultation of the indigenous peoples in a coordinated and systematic manner in the light of Articles 2, 6, 7, 15 and 33 of the Convention; (2) the identification of urgent situations connected with the exploitation of natural resources which endanger the persons, institutions, property, work, culture and environment of the peoples concerned and the prompt application of special measures necessary to safeguard them. The Committee requests the Government to supply information in this respect, together with its comments on the communications received.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2009.]

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. The Committee takes note of the Alternative Report of 2006 sent by the General Confederation of Workers of Peru (CGTP) on Peru’s compliance with the Convention, received on 17 October 2006 and sent to the Government on 17 November 2006. The abovementioned report was prepared with the participation of the Working Group on Indigenous Peoples of the National Coordinating Committee on Human Rights and the following organizations: Interethnic Association for the Development of the Peruvian Rainforest (AIDESEP), the Farmers’ Confederation of Peru (CCP), the National Agrarian Confederation (CNA) and the National Coordinating Committee of Communities affected by Mining (CONACAMI). The Committee also notes a communication from the General Union of Wholesalers and Retailers Grau Tacna Commercial Centre (SIGECOMGT), received on 30 July 2007 and sent to the Government on 20 August 2007.

2. The Committee notes that on 20 August 2007 the Government sent a letter indicating that the severe earthquake in Peru on 15 August 2007 has seriously affected facilities at the Ministry of Labour’s headquarters, bringing activities to a standstill and preventing a timely response to the Committee’s requests. The Committee understands the reasons cited by the Government and expresses its solidarity towards those affected by such a major natural disaster. It will examine the abovementioned communications in detail together with the Government’s next report and any comments the Government may wish to make.

3. The Committee invites the Government to provide detailed information on the following:

(a)   Article 1 of the Convention: The peoples protected by the Convention: the steps taken, including legislative measures, to ensure that all those referred to in Article 1 of the Convention are covered by the Convention, regardless of the term applied to them, bearing in mind that the Convention’s concept of “indigenous peoples” is broader than the community of which such peoples are a part.

(b)   Articles 13(2) and 15 of the Convention: Consultation and natural resources: the measures adopted in consultation with, and with the participation of, indigenous peoples, particularly through their representative institutions, in order to establish or maintain appropriate procedures for consulting indigenous peoples in order to determine whether and to what extent their interests will be affected, before undertaking or authorizing any programmes for prospecting or using natural resources in the case of subsurface resources belonging to the State or other resources over which the State has rights and which are located in the lands and territories defined in Article 13(2) of the Convention.

(c)   Articles 2, 7 and 33 of the Convention: Coordinated and systematic action with the participation of indigenous peoples: the measures adopted to expand the institutional basis for indigenous participation in public policies affecting indigenous peoples in accordance with Articles 2, 7 and 33 of the Convention. Please report on progress made in this respect.

4. The Committee invites the Government to provide the abovementioned information in its next report together with the information requested by the Committee in 2005, particularly in respect of the application of Article 14 of the Convention (lands).

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

1. Article 1 of the Convention. Identification and self-identification. The Committee notes that, according to the Government’s report, Peru’s population, estimated at around 24 million inhabitants, is mainly mestizo (of mixed extraction) and that over 9 million Peruvians are indigenous, principally Quechua and Aymara, living in the Andean region. There are 42 ethno-linguistic groups residing in the Amazonian region of Peru, which covers 62 per cent of the national territory. These populations have cultural, economic and political characteristics that are distinct from other sectors of the national population. The Indian population is made up, not only of rural and indigenous communities, but also of remote settlements: groups that are in a situation of voluntary isolation, or with which contact is sporadic. The official languages are Spanish, Quechua (spoken by more than 3 million people), Aymara (350,000 speakers) and in the Amazonian region 40 languages, belonging to 16 linguistic families, are spoken. According to the report, there is a need for greater recognition of the right to their own identity of all those communities that do not explicitly identify themselves as native, indigenous or members of a specific linguistic group, in addition to the 1,265 rural and indigenous communities included in the State’s registers. In this regard, the Committee previously referred to the difficulties that arose from the various definitions and terms used to identify the populations covered by the provisions of the Convention: rural, indigenous and native populations and those living in the highlands, the forest and the edge of the forest. The Committee again suggests that the Government consider certain fundamental common criteria for the identification of the groups to which the Convention may apply, with an indication, for example, of the criteria used in the last census, and it requests information on the manner in which the criterion of "self-identification", set out in paragraph 2 of this Article, is applied.

2. Articles 2 and 33. Coordinated and systematic action to give effect to the provisions of the Convention with the participation of indigenous peoples. The Committee notes the various programmes referred to in the report, such as those being run by the National Commission of Andean, Amazonian and Afro-Peruvian Peoples (CONAPA), the Native Communities Programme of the Office of the Public Ombudsperson, which is responsible for the indigenous communities of the Amazonian region and the Bureau for Protected Natural Areas (IANP) of the National Institute for Natural Resources. It also notes the activities of other institutions, such as the Ministry of Energy and Mines. The Committee considers that, pursuant to Article 2 of the Convention, coordinated and systematic action, with the participation of indigenous peoples, is fundamental for the proper application of the Convention. The Committee therefore requests information on the efforts made to coordinate existing programmes with the participation of indigenous peoples at each stage, from planning to evaluation. Please indicate, for example, whether the indigenous peoples of the coast are represented on CONAPA and whether this, or any other body, has the capacity to prepare proposals and undertake general coordination functions.

3. Articles 6 and 7. Consultation and participation. The Committee notes that, prior to holding consultations, the national, regional and local indigenous organizations concerned with the issue in question are identified. Consultation is explicitly advocated in the regulations issued under the Act on protected natural areas (ANP). The establishment of an ANP guarantees the intangibility of the area and the customary rights of the resident population. The Committee notes with interest that the ANPs call upon the population to participate in the management committee and where there is diversity of ethnic groups, there is no discrimination between the various stakeholders, and interpreters are used. In the specific case of communal reserves, a special participation system is being developed. The Committee also notes that, according to the Government, the drawback of these processes is the high logistical cost of ensuring the informed participation of the population in general and of the indigenous peoples in particular. It notes with interest the efforts made in this regard and, taking into account the fact that consultation and participation are essential in underpinning the other provisions of the Convention, it hopes that the Government will continue endeavouring to extend consultation and participation to cover the other legislative and administrative measures likely to affect the indigenous peoples directly. The Committee would be grateful if the Government would provide information in its next report on the progress made, the results obtained and the difficulties encountered in this respect.

4. Article 11. Forced labour. The Committee notes the 2004 publication of the Programme on the Promotion of the ILO Declaration on Fundamental Principles and Rights at Work, entitled: "Forced Labour in Timber Cutting in the Peruvian Amazon". According to this publication, some 33,000 people, for the most part belonging to diverse ethnic groups inhabiting the Peruvian Amazon, are victims of forced labour. The study points out the existence of new areas of forced labour in the regions of Ucayali and Madre de Dios. In Ucayali, numerous indigenous communities are affected: Murunahuas (Chitonahuas), Masco-Pirus, Cashinahuas, Shanarahuas, Amahuakas, Kulinas, Mastinahuas, Chaninahuas, Ashkaninkas, Cashibo-Catataibo, Isconahua, Shibipos, Paratari y Capirushari (Ashaninka), Tahuamanu and other isolated communities from the Alto Purús basin. In Madre de Dios, indigenous communities are similarly affected in the province of Tahuamanu, the Rió los Amigos and the Rió las Piedras. The study notes that, in expanding their operations, the timber companies have come into contact with isolated groups, frequently resulting in epidemics and the extinction of these groups. According to sources cited in the study, between 50 and 60 per cent of the Nahuas have died. Among its recommendations, the report suggests the development of a plan of action for the elimination of forced labour in Peru. The Committee will continue to assess the situation more closely in its examination of the application of the Forced Labour Convention, 1930 (No. 29), but asks the Government to keep it informed on the plan of action that is adopted and its results.

5. Articles 13 and 14. Land rights. The Committee notes that 310 rural communities are registered annually and that 1,772 are awaiting registration. The title procedures for 139 indigenous communities from the forest are still pending and 85 per cent of them have sought the extension of the boundaries that are currently recognized. It also notes that the Special Project for Land Title and Legal Security (PETT) has completed the physical and legal review of the property rights of 1,700,000 lots, of which 700,000 have been confirmed in the land registers. In its previous comments, the Committee noted that section 11 of Act No. 26505 leaves open the possibility that market forces in regions with a high poverty level or which are rich in minerals and hydrocarbons may induce indigenous peoples to give up their traditional lands. Furthermore, it drew attention to section 6 of the above Act, which makes any judicial action subject to the procedures set out in the Code of Civil Procedure, which could constitute a disadvantage for certain indigenous communities with little knowledge of the functioning of judicial procedures. The Committee once again requests the Government to provide more detailed information on the manner in which the land titling procedure functions in practice, all the legal requirements to be met and the financial cost, if any, of the procedure. It also requests information on the requirements that must be met for communities to obtain recognition and registration so that they can assert their rights.

6. In its previous comments, the Committee noted the Second Report on the Situation of Human Rights in Peru by the Inter-American Commission on Human Rights (OEA/Ser.L/V/II.106-Doc. 59.rev.) of 2 June 2000, which refers to the PETT and describes the difficulties encountered by indigenous communities in asserting their land rights. The Committee once again hopes that the Government will take appropriate measures, in consultation with the peoples concerned, to identify and eliminate obstacles, including those of a procedural nature, to the realization of the rights set out under Article 14 of the Convention and that in its next report it will be able to supply information on the progress achieved.

7. In conclusion, with regard to land rights, the Committee once again requests the Government to provide information on the implementation of the recommendations contained in the report adopted by the Governing Body at its 273rd (November 1998) Session concerning a representation submitted by the General Confederation of Workers of Peru (CGTP) alleging that Act No. 26845 of 26 July 1997 (the Land Titling Act for the rural communities of the coastal region) allows the sale of community lands without previously seeking the authorization or opinions of the indigenous communities affected.

8. Article 15 of the Convention. Natural resources and consultation. On the one hand, the Committee notes that, according to the Government’s report, the State is sovereign with regard to the exploitation of natural resources, even where they are located in the territory of indigenous communities. On the other hand, it notes with interest the information prepared by the Ministry of Energy and Mines, annexed to the report, with regard to the application of the Convention. This includes educational presentations to promote an understanding of mining exploration and exploitation activities and the rights of indigenous communities. Rather than excluding state-owned natural resources from the application of the Convention, Article 15, paragraph 2, of the Convention, while recognizing this right, contains special provisions to address this situation. In this regard, the Committee notes with interest that Ministerial Resolution No. 596-2002 EM/DM, of December 2002, establishes the processes for the participation of citizens in the approval of environmental impact studies (EIA), including prior consultation. With regard to the hydrocarbons sector, the Committee notes with interest certain information relating to the Camisea Project and in particular to the Camisea Fund, financed through dues levied by the Government from companies, the aim of which is to support the development of indigenous peoples and populations affected by the project. The Committee also notes the proposed guide on the compensation of Indian communities for activities related to hydrocarbons. The Committee would be grateful if the Government would provide detailed information on the Camisea Project, indicating to what extent the consultation envisaged in Article 15, paragraph 2, is applied in the case of the exploration and exploitation of hydrocarbons and other natural resources, the progress achieved and the difficulties encountered.

9. The Committee notes that, according to the report, from January 1999 to November 2002, the General Directorate for Hydrocarbons, the General Directorate for Environmental Affairs, the Technical Secretariat for Indigenous Affairs, the National Mining, Oil and Energy Company, indigenous organizations and other sectors worked on the draft text of regulations on the participation and consultation of indigenous communities, but that this process could not be completed due to the withdrawal of the Inter-ethnic Association for the Development of the Peruvian Forest (AIDESEP) in November 2002. The Committee considers that the preparation of a general framework for the consultation and participation of indigenous peoples with regard to hydrocarbons could contribute to ensuring that hydrocarbon exploration and exploitation benefit all the parties involved by strengthening dialogue, inclusive and sustainable development, and legal security, thereby contributing to the prevention of possible future disputes. In this regard, the Committee invites the Government to continue its efforts to prepare the above regulations in consultation with indigenous peoples, reminds the Government that if it deems necessary, it may request the technical assistance of the Office and requests it to provide information in this regard.

10. Article 20. Recruitment and conditions of employment. The Committee notes from the report that an analysis of labour issues affecting indigenous populations could be carried out through the examination of the situation of the rural population, which would include the indigenous population. It notes that, on 22 July 2004, the Framework Act for the economic development of rural areas was adopted, with a view to overcoming the problems of poverty in rural areas. Its specific objectives include the improvement of the quality of rural life and respect for cultural diversity. In the context of this Act, the Rural Sector Support System (SAS RURAL) was established to guide and channel management and technology. Its executive board includes among its members a representative of rural and indigenous communities. The Committee would be grateful if the Government would keep it informed of the impact of this Act and of the SAS RURAL in terms of improving the living and working conditions of indigenous populations and if it would provide updated statistical information.

11. Labour inspection. Furthermore, the Committee requests detailed information on the health and safety services of the labour inspectorate, particularly with a view to their effective participation in inspections in rural areas where a large number of indigenous people work. The Committee also requests the Government to provide statistics on the number of inspections (especially those related to work by indigenous people) in rural areas.

12. Articles 21 and 22. Vocational training. The Committee requests the Government to provide detailed information on whether indigenous peoples enjoy equal access and participate in vocational training programmes for the general population and on any specific measures taken for the benefit of these peoples. Furthermore, it requests the Government to indicate whether there are vocational training programmes which are run and designed jointly with the indigenous peoples concerned so that their specific training needs are taken into account.

13. Articles 24 and 25. Health. The Committee notes that, according to the Government’s report, the living and health conditions of indigenous peoples are much lower than the national average and have reached alarming levels. The General Epidemiological Office (OGE) is the body responsible for assessing the health situation in the country and in each region. In order to produce an appropriate overview of the situation of the Amazonian indigenous peoples, the OGE signed an inter-institutional collaboration agreement with the AIDESEP to develop consultative processes with these peoples based on inter-cultural methodologies to provide reliable information from the perspective of indigenous peoples. Ministerial Resolution No. 192-2004/MINSA of 13 February established the National Committee for the Health of Amazonian Indians in order to draw up a comprehensive health plan. The Ministry of Health established national health strategies, one of which is the "Health of Indigenous Peoples", under the responsibility of the National Centre for Inter-cultural Health of the National Health Institute. This strategy will cover all the projects being undertaken in the Amazonian region. The Committee requests the Government to continue providing information on the "Health of Indigenous Peoples" strategy, its implementation and the results obtained, including updated statistical information.

14. Articles 26 to 31. Education and means of communication. The Committee notes the full information provided by the Government and the adoption of the General Education Act, No. 28044, establishing indigenous education and inter-cultural bilingual education; Act No. 27818 on inter-cultural bilingual education and Act No. 28106 on the preservation and promotion of aboriginal languages. It also notes the establishment of the National Directorate for Inter-cultural Bilingual Education and the National Advisory Council for Inter-cultural Bilingual Education, in which representatives of indigenous peoples participate. The Ministry of Education has concluded agreements with AIDESEP and the Aguaruna Huambisa Council and has begun the implementation of the Programme for Education in Rural Areas (PEAR), one component of which concerns community participation in plans for Andean and Amazonian indigenous peoples. The national policy in this field establishes that teaching staff shall teach indigenous students to read and write in their own language and in Spanish as a second language. The Committee also notes the specific activities of the media to promote plurality and the organization of meetings between indigenous children and children from the urban areas of Lima. The Committee requests the Government to continue providing information on the application of these Articles, their results and updated statistical information.

15. Article 32. Contacts and cooperation across borders. The Committee requests the Government to provide information on the measures adopted to facilitate contacts and cooperation between indigenous and tribal peoples across borders, including activities in the economic, social, cultural, spiritual and environmental fields, particularly in the Amazon region.

16. Part VIII of the report form. The Committee wishes to remind the Government that this part of the report form of the Convention, approved by the Governing Body, indicates that, although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application. The Committee would be grateful if the Government would indicate whether such consultations have been held or if it plans holding them in the future.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

1. Articles 2 and 33 of the Convention. Coordinated and systematic action to give effect to the provisions of the Convention with the participation of indigenous peoples. The Committee notes that the National Commission of Andean, Amazonian and Afro-Peruvian Peoples (CONAPA), attached to the Office of the President of the Council of Ministers, which has the function of approving, planning, promoting, coordinating, directing, supervising and evaluating policies, programmes and projects for the populations concerned, was established by Presidential Decree No. 111-2001-PCM in 2001. It notes with interest that in 2003, with international cooperation, CONAPA facilitated some 20 meetings and workshops on identity, consultation, participation, sustainable development and the strengthening of indigenous organizations. The Committee considers that the participation of indigenous peoples in the policies that affect them is essential for the effective application of the provisions of the Convention. The Committee would be grateful if the Government would provide information on the way in which the various indigenous organizations are represented in CONAPA and on their participation and the activities carried out by the above Commission. Also noting that CONAPA has proposed reforms to the Political Constitution of Peru for the introduction of a new chapter on the rights of indigenous peoples and Afro-Peruvian populations, the Committee invites the Government to provide a copy of the proposed text and to keep it informed of developments in this regard.

Community of Santo Domingo de Olmos

2. Article 14. Since 2000, the Committee has been examining a communication from the Central Confederation of Workers of Peru (CUT) stating that the Government expropriated 111,656 hectares of the ancestral lands belonging to the indigenous community of Santo Domingo de Olmos through Supreme Decree No. 017-99-AG and that these lands are reported to have been conceded to private investors to carry out a hydroelectric project, with no compensation whatsoever being paid to the indigenous community concerned. The Government indicated that the action did not constitute an expropriation and that the ownership rights of third parties had been safeguarded.

3. In its 2002 observation, the Committee examined in detail the legislation governing the legal status of agricultural lands, including Act No. 26505 of 17 July 1995 on private investment in economic activities carried out on the lands of the national territory and of rural and indigenous communities, and its regulations. It noted that section 4 of the impugned Decree establishes as uncultivated land (eriazas) 111,656 hectares to which the Olmos community asserts ancestral rights, and provides in section 5 for the said land to be registered for the Olmos Special Hydroenergy Irrigation Project. It pointed out that although, according to the Government, the expropriation procedure had not continued, lands to which an indigenous community is claiming ancestral rights had been incorporated in the domain of the State and conceded to private parties. In this regard, it noted four resolutions showing the existence of traditional occupation and the will of the Olmos community not to forego these rights. It also noted with concern that, according to the CUT, the 111,656 hectares are of strategic importance for the communities and that much of the remaining area is constituted by hills and is subject to water-related problems; it also recalled that, in 1998, it had already indicated concern that Act No. 26505 might lead to the dispersion of the lands of indigenous communities.

4. The Committee drew the Government’s attention to the fact that what it refers to as incorporation into the domain of the State constitutes, as there had been traditional occupation, a denial of the rights of ownership and possession established in Articles 13 to 15 of the Convention, regardless of the procedure used. The Committee asked the Government to take the necessary steps, in accordance with Article 14, paragraph 2, of the Convention, to identify, in consultation with those concerned, as required by Article 6, the lands which the above people traditionally occupy and it invited it to take the appropriate steps to ensure the effective protection of their rights.

5. In its last report in 2004, the Government reiterates that, in accordance with Act No. 26505 and its regulations, uncultivated land (eriazas) suitable for agricultural use and stock-raising is in the domain of the State and that the ownership rights of third parties are safeguarded. It adds that, if the ownership of the lands in question by the rural community of Santo Domingo de Olmos were confirmed, an expropriation procedure could then be initiated, in accordance with Act No. 27117, the General Expropriations Act, but as this process was not used, it is not appropriate to talk of expropriation. The Government indicates that article 89 of the Political Constitution of Peru provides that rural and indigenous communities shall enjoy legal existence and incorporation, the ownership of their lands imprescriptible and that they can have legal recourse through national law to assert ownership rights. The Government adds that in 2001 the Constitutional Court upheld a ruling handed down by another court that declared the constitutional protection ("amparo") proceedings initiated by the community inadmissible owing to the fact that the community had not been registered or presented a registration certificate. It adds that, according to the latest information communicated by the Government, although the community of Olmos has now formalized its legal personality, it lacks legitimate legal representation, which is a prerequisite when seeking the formalization of its land ownership by the competent body, the National Agrarian Directorate of the regional government of Lambayeque, and that the community has to determine its own formal legal representation.

6. Article 14, paragraph 3. Adequate procedures to resolve land claims. The Committee recalls that, although the Decree in question safeguards the ownership rights of third parties, the Convention not only protects ownership rights, but also traditional occupation. It also recalls that, under the terms of the Convention:

-  governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession (Article 14, paragraph 2); and

-  adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned (Article 14, paragraph 3).

The Committee emphasizes that Article 14 of the Convention protects not only those lands to which the peoples concerned already have title of ownership, but also those lands that they traditionally occupy. Adequate procedures are required to determine the existence of traditional occupation. The Committee notes that the merits of the case were not examined, but the Court ruled that the "amparo" proceedings were inadmissible on grounds of form. The Committee therefore requests the Government to take the appropriate measures, in consultation with the community concerned, to identify and eliminate those obstacles, procedural or otherwise, encountered by the community of Olmos in asserting effectively its claim to the lands which it alleges that it has traditionally occupied, so that it may avail itself of the recourse envisaged in Article 14, paragraph 3, of the Convention and, where appropriate, obtain effective protection of its rights. The Committee hopes that in its next report the Government will be in a position to provide information on the progress achieved in this regard.

The Committee is addressing a request directly to the Government.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that the Government’s report arrived during its present session. It will therefore address it in its next session, together with the Government’s replies to the Committee’s observation and direct request made in 2002.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee refers to its observation and requests the Government to respond in its next report, due in 2003, to the comments in the observation and in the 1998 direct request. The Committee observes that the report received in July 2001 contains no indication that it was sent by the Government to employers’ and workers’ organizations, as required by article 23(2) of the ILO Constitution and in accordance with Part VII of the report form. It hopes that the Government will send a copy of its next report to the abovementioned organizations.

2. Articles 6 and 15 of the Convention. The Committee previously requested information on the application of these Articles in connection with the case under examination. It notes that, according to the information supplied by the Government, Supreme Decree No. 012-98-PROMUDEH established the Indigenous Affairs Committee, a multi-sectoral body responsible for promoting enhanced coordination between the indigenous communities and the State, and that its regulations were approved by means of Ministerial Resolution No. 104-2001-PROMUDEH. One of this committee’s functions is to coordinate policies and standards with the initiatives and demands of the indigenous communities; it will also determine the consultation procedures to be followed by the various state departments with regard to legislative and administrative measures that might affect indigenous peoples. The Committee notes that this legislation marks a step forward in facilitating the application of the Convention. It observes, however, that the information it requested on the application of these Articles of the Convention in the context of the case under examination has not been supplied.

3. The Committee points out to the Government that registration of the lands in question in the domain of the State does not exempt it from applying Article 15 of the Convention. It urges the Government to consult the Olmos community to determine whether, and to what extent, its interests would be harmed by the project before embarking on any programme for the exploration or exploitation of resources pertaining to their lands, as required by Article 15, paragraph 2, of the Convention. The Committee also asks the Government to take appropriate steps to ensure that the peoples concerned participate wherever possible in the benefits of these activities and receive fair compensation for any damages they may sustain as a result of them, in accordance with paragraph 2 of this Article. Please provide information on measures taken to this end and on the progress achieved.

4. The Committee notes Chapter X (Rights of indigenous communities) of the second report on human rights in Peru by the Inter-American Commission on Human Rights (OEA/Ser.L/V/II.106-Doc. 59 rev.) of 2 June 2000, which states that the Special Project on the Titling of Lands (PETT) does not award property titles to indigenous communities that apply for them, arguing that it lacks the necessary funds; that priority has been given to clearing up the status of the property of small farmers and not of the peasant and indigenous communities; and that indigenous property rights have suffered significantly from the agrarian reform process. The report also indicates that some 300 communities are not recognized and do not have title, and that approximately 3,431 peasant communities lack support for their traditional lands and are therefore unable to enter their titles in the public registers. The foregoing coincides with the information sent by the Government on the Olmos community to the effect that the latter cannot register its lands because it is not registered as a legal personality in the public registers. The Committee expresses its concern at the difficulties encountered by the indigenous communities in asserting their land ownership rights. As the Committee pointed out in paragraph 14 of its observation of 1998, the Convention requires governments to take the necessary steps to ensure effective protection of the property and ownership rights of these peoples and must offer them a real possibility to settle their land claims. The Committee hopes that the Government will take appropriate measures, in consultation with the peoples concerned as the Convention requires, to identify and eliminate obstacles, procedural or otherwise, to the effective protection of these rights and that in its next report it will be able to supply information on the progress made.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee notes the Government’s report sent in reply to its observation of 2000, which dealt only with observations presented by a workers’ organization on 3 August 1999 under article 23 of the Constitution, and the Government’s report of 9 May 2000 responding to those observations. The Committee points out that its comments on the broader issues covered by the observation and direct request of 1998 are still valid and would be grateful if in its report due in 2003 the Government would reply to the 1998 comments made as well as to the ones in this observation.

2. The Committee noted previously that according to the Central Confederation of Workers of Peru (CUT), Supreme Decree No. 017-99-AG of 3 June 1999 expropriated 111,656 hectares of the ancestral lands of the indigenous community of Santo Domingo de Olmos in the province of Lambayeque and the land taken was adjudicated to private investors for a hydroelectric project. According to the CUT, neither the community nor its members were compensated for the confiscation of the lands. The Committee also noted that, in reply to the CUT’s communication, the Government indicated that the inclusion of the 111,656 hectares in the project did not amount to expropriation and that, in the event of the titling of that area, the Community’s rights would not be affected since section 5 of the abovementioned Decree safeguards third parties’ ownership rights.

3. The Committee notes that, in reply to a question it raised in its observation of 2000 on efforts to demarcate the community’s ancestral lands, the Government indicates that the Special Project for the Titling of Lands (PETT), created under the basic law of the Ministry of Agriculture (Legislative Decree No. 25.902) and regulated by Supreme Decree No. 064-2000, has responsibility nationwide for the physical and legal clarification of rural property belonging to individuals, which was expropriated and adjudicated for the purposes of agrarian reform, and of available uncultivated lands ("eriazas") suitable for crops/livestock belonging to the State for transfer to the private sector. According to the report, the rural property clarification process formalizes in law rural lands, peasant and indigenous communities and uncultivated lands by means of rural land registers established nationwide. It further indicates that the indigenous community of Santo Domingo de Olmos possesses all the technical elements it needs for registration and can start the procedure by registering the 360,808 hectares which are not in dispute, but that one legal element is missing, namely, a registration of its legal personality in the public record.

4. The Government’s report for 2001 repeats that the case is not one of expropriation and that the community’s property rights are safeguarded in the case it holds a title.

5. In examining these issues, the Committee has taken note of the laws and regulations governing agricultural land, namely, the Civil Code, Act No. 26.505 of 17 July 1995 on private investment in economic activities carried on in the national territory and the lands of peasant and indigenous communities, and its regulations, approved by Supreme Decree No. 011-97-AG of 12 June 1997. It notes that section 7 of the regulations provides that uncultivated lands ("eriazas") suitable for farming means lands which are not used owing to lack of water or excess water, and section 9 establishes that uncultivated lands ("eriazas") suitable for farming are in the domain of the State except for those for which a private or communal property title exists. The Committee further notes that the Ministry of Agriculture keeps an inventory of the uncultivated lands referred to in section 7 and monitors compliance with the contracts adjudicating such lands. Furthermore, the same Decree establishes (section 4) as uncultivated land 111,656 hectares to which the Olmos community asserts ancestral rights, and provides (section 5) for the said land to be registered to the Olmos Special Hydroenergy Irrigation Project. While noting the Government’s statement that the expropriation process has not continued, the Committee points out that lands to which an indigenous community is claiming ancestral rights have been incorporated in the domain of the State and adjudicated to private parties without any compensation being granted.

6. The Committee notes that the registration in the domain of the State and subsequent adjudication to the private sector of lands to which indigenous people claim ancestral rights, raises questions as to the conformity of this procedure with Articles 13 and 14 of the Convention. It will therefore examine the claim that the Olmos community has ancestral rights to the disputed lands in the light of those Articles of the Convention.

7. The Committee notes that Article 13, paragraph 1, of the Convention refers to lands which the peoples concerned occupy or otherwise use, while Article 14, paragraph 1, establishes that "the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized", and paragraph 2, of the same Article requires governments to take steps as necessary to identify those lands. The Committee already established, in a comment of 1998 on the application of the Indigenous and Tribal Populations Convention, 1957 (No. 107), that under the Convention traditional occupation conferred a right to the land, whether or not such a right was recognized. In examining whether there was traditional occupation of the lands in question, the Committee also noted that the peasant community of Olmos possesses four resolutions recognizing the lands: resolution of 9 May 1544 by Blasco Núñez de Vela, Viceroy of Peru; resolution of 22 April 1550 by Pedro de la Gasca, President of the "Audiencia de los Reyes" (Kings’ Court); resolution of 13 April 1578, by Francisco Toledo, Viceroy of Peru; and supreme resolution No. 086 of 4 August 1931 by the Ministry of Development recognizing the peasant communities of Olmos as indigenous peoples. The first three resolutions recognize the rights over the land and were registered by a notary public in 1847, 1948 and 1974. The Committee will not go into their validity in law as titles of property, but takes note of them in so far as they show the existence of traditional occupation and the will of the Olmos community not to forego their rights over the disputed lands, having striven for centuries to obtain recognition of them. The Committee also noted the complaint submitted by the President of the peasant community of Olmos on 24 July 1999 which was sent by the CUT.

8. The Committee notes that the information at its disposal shows that there was traditional occupation, although it is not possible to determine whether it covered all the lands in question. The Committee observes that, according to the map provided by the CUT, the disputed area appears to be located in the centre of the lands traditionally occupied by the Olmos community. It notes with concern that, according to the CUT, the 111,656 hectares are strategic for the communities and that much of the remaining area is constituted by hills and is subject to water problems. The Committee recalls that in 1999, the year in which the above Decree was issued, the Convention was already in force, and that in paragraphs 14 and 15 of its observation of 1998, it already expressed concern that Act No. 26,505 might facilitate the dispersion of communal lands.

9. The Committee accordingly points out that what the Government refers to as "incorporation in the domain of the State" constitutes, in so far as there was traditional occupation, a denial of the rights of ownership and possession established in Articles 13 to 15 of the Convention, regardless of the procedure used. The Committee notes that the Olmos indigenous community is claiming the return of its lands, if not now at some time in the future. The Committee asks the Government to take the necessary steps, in accordance with Article 14, paragraph 2, of the Convention, to identify as Article 6 prescribes, the lands which they traditionally occupy, in consultation with the peoples concerned. The Committee hopes that, having done so, the Government will then take the appropriate steps to ensure, in accordance with Article 14, paragraph 2, of the Convention, the effective protection of their rights of ownership and possession, including to the 111,656 hectares in question, as appropriate.

10. More generally, the Committee is concerned that Act No. 26,505, its implementing regulations and the related legislation may impair the rights of indigenous peoples to the lands they traditionally occupy. It requests the Government to take appropriate steps to prevent lands traditionally occupied by indigenous peoples from being registered in the domain of the State, and to facilitate the prompt titling of such lands. The Committee hopes that in its next report the Government will send information on the measures adopted and on progress made.

The Committee is also sending a request directly to the Government.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes that the present comments only concern observations presented by a workers’ organization under article 23 of the Constitution, and do not concern the application of the Convention in general. The broader matters covered by the observation and direct request of 1998 remain valid, and the Committee reminds the Government that it should reply to these comments in its next report in accordance with article 22 of the Constitution.

2.  The Committee notes the submission from the Central Confederation of Workers of Peru (CUT) of 3 August 2000, alleging the non-observance of the Convention by the Peruvian Government. The Committee also notes the Government’s reply to the comments by the CUT, of 9 May 2000.

3.  The CUT indicates that the Government of Peru has issued Supreme Decree No. 17-99-AG, of 3 June 1999, which expropriates 111,656 hectares of the ancestral lands belonging to the Country Community of Santo Domingo de Olmos ("the Community"), an indigenous community in the Department and Province of Lambayeque. It points out that there are 18,000 community members with a community council elected by 118 delegates which represent the Community.

4.  The CUT states that the Government’s initial intention was to expropriate 46,000 hectares of community land, but that opposition from the community members prompted the Committee for the Promotion of Private Investment (COPRI) and the Ministry of Agriculture to expropriate a total of 111,656 hectares. The CUT asserts that the expropriated lands are to be conceded to foreign investors that intend to carry out a hydroelectric project.

5.  The Committee notes the provisions of Supreme Decree No. 17-99-AG, as well as Supreme Resolution No. 86 of 4 August 1931, which recognizes "the indigenous community of Olmos" and provides for their entry in the Official Register of the Section for Indigenous Affairs of the Ministry of Development. It also notes from the information supplied by the CUT that neither the Community nor the individual community members have been compensated for the confiscation of these lands.

6.  The Committee notes the Government’s reply of 9 May 2000 to the communication from the CUT. The Government indicates that, under Act No. 16101 of April 1966, the execution of irrigation works in the Pampas de Olmos in the Department of Lambayeque was declared to be in the public interest and of public benefit and that, subsequently, Supreme Decree No. 907-74-AG of September 1974 designated the Olmos Irrigation Project as a Special Project. As such, according to the Government, under Act No. 26440, the above Project was included in the process of the Promotion of Private Investment, regulated by Legislative Decree No. 674. The Government states that an area of 111,656 hectares of uncultivated land was subsequently identified as falling within the scope of the Project and that as a result, Supreme Decree No. 17-99-AG was issued in June 1999. The Decree states that "definitive studies for the Special Olmos Irrigation Project have been completed … which include irrigation projects and hydraulic energy systems designed to transfer waters from the Atlantic to the Pacific, channelling them and using them to generate energy, then distributing them for irrigation purposes in the valleys included under the scheme". Section 1 of the Decree changes the name of the earlier project to the Special Olmos Irrigation and Hydraulic Energy Project. Section 2 of the Decree approves the plans and report setting out the scope of the Project, along with the taking of the 111,656 hectares referred to above. Under its section 5, the Supreme Decree provides that the management of the Special Olmos-Tinajones shall enter the lands concerned in the relevant public register, in favour of the Special Olmos Irrigation and Hydraulic Energy Project, without prejudice to the right of ownership of third parties.

7.  The Government states that section 70 of the Political Constitution of Peru sets forth the right of ownership and that, in accordance with this section, "no one shall be deprived of their property, except for reasons declared by law to be in the interest of national security and public benefit, and subject to payment of just compensation, including compensation for possible damages sustained". The Government states that recognition of the community ownership of the land covered by the above Project could give rise to expropriation proceedings. However, it indicates that this procedure was not followed in the Community’s case, and that the inclusion of the 111,656 hectares in the Project do not constitute a taking. The Government also states that since section 5 of the Decree safeguards third parties’ ownership rights, if indigenous ownership of the lands concerned were established, the Community’s rights would not be affected.

8.  The Committee requests the Government to supply information on the efforts made to demarcate the ancestral lands of the Community, including the 111,656 hectares mentioned in Supreme Decree No. 17-99-AG, as well as copies of all deeds of ownership concerning the lands mentioned above. It also asks the Government to supply information on all modification made by the Special Project on Land Ownership (PETT) to the Official Land Register as regards the above lands. Finally, it requests the Government to supply information on any action brought by the Community or any of its members to claim ownership of the 111,656 hectares in question or to register ownership of these lands.

9.  Articles 6 and 7 of the Convention.  The Committee recalls that in giving effect to the provisions of the Convention, the Government must consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly. The peoples concerned shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly. The Committee requests the Government to send information on any prior consultations held with the Community before the issuing of the Decree in question. It also requests information on the mechanisms established to allow the Community to participate in the development of plans which affect them, including the Special Olmos Irrigation and Hydraulic Energy Project.

10.  Article 15.  The Committee recalls that the rights of indigenous peoples to the natural resources pertaining to their lands shall be specially safeguarded. The peoples concerned shall participate in the use, management and conservation of such resources, and in the benefits accruing from any activities of exploration or exploitation of such resources. Consequently, it requests the Government to send information on all measures taken or envisaged to ensure the participation of the Community in the use, management and conservation of the resources found on its lands, as well as in benefits brought by the Project and to compensate the Community for damages caused by the activities envisaged in the context of the Special Project.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee notes the Government's detailed first report and the conclusions of the Governing Body at its 273rd Session on the representation made under article 24 of the Constitution concerning the application of certain Articles of the Convention. The Committee requests the Government to provide additional information on the following points.

2. Article 1 of the Convention. The Committee requests the Government to provide more detailed information on the number of persons considered to be indigenous in the 1993 census and those who are considered to be rural workers, since it would not appear from the available texts that a distinction is made. Furthermore, the number of persons belonging to rural and native communities appears to be fairly low in relation to the total number of inhabitants. The Committee suggests that the Government might develop harmonized criteria for the populations which may be covered by the Convention, since the various definitions and terms used may give rise to confusion between rural, indigenous and native populations and those living in the highlands, the forest and cleared land. The Committee would be grateful to be provided with specific information on the criteria taken into account in the 1993 census to determine the indigenous origin of the persons covered by the census and on whether the criterion of "self-identification" was taken into consideration to determine the groups covered by the Convention, as required by paragraph 2 of this Article.

3. Article 2. The Committee requests the Government to provide additional information on specific programmes for indigenous communities and their participation in the formulation of such programmes.

4. The Committee notes that the Peruvian Indigenous Institute (IIP) was described by the Government in its first report as the central organization for the coordination of government action in relation to indigenous peoples in the country. The Committee notes that the Institute has been abolished since the sending of the report and its staff is now part of an "indigenous unit" in the Ministry for the Promotion of Women and Human Development and it requests the Government to indicate whether the indigenous unit has assumed all the functions of the IIP and, if not, to specify the government body which is currently responsible for developing "coordinated and systematic action", as required by Article 2.

5. With regard to the Act respecting private investment in the development of economic activities on the lands of the national territory and of rural and native communities, which was enacted after the ratification of the Convention, the Committee requests the Government to inform it whether the peoples concerned participated in its formulation, as provided for by Article 2. Furthermore, the Committee would be grateful to be provided with information on the activities currently undertaken by the National Institute for Rural Development (INDEC). Moreover, in the context of a direct request in 1992 on Convention No. 107, the Committee recalled that the Government had proposed to undertake a study on the possibility of adopting measures to improve the situation of indigenous peoples living on marginal cultivable land in urban areas. Since no new information is provided in the current report on this study, the Committee requests the Government to provide information on any new measure which has been taken in this respect.

6. Article 3. The Committee requests information on the rights of persons who are considered to be indigenous, despite not being included in the census as such because they do not have a name of indigenous origin. Furthermore, it requests information on whether appropriate mechanisms exist to apply the legislation in cases in which allegations are made of discrimination on the grounds of the ethnic origin of the individual.

7. Article 4. The Committee would be grateful to be provided with fuller information on any special measures which have been adopted to overcome the difficulties encountered by indigenous peoples in economic and social transition.

8. Article 6. The Committee recalls that the apparent lack of consultation was one of the grounds for the conclusions reached by the tripartite committee established by the Governing Body to examine the representation made under article 24 of the Constitution. The Committee therefore requests the Government to provide specific information on the implementation in practice of consultation procedures with indigenous communities, the means of carrying out this type of consultation and, in particular, whether such consultations, if they are held, are undertaken in an appropriate form to give these communities a voice in cases in which their interests may be affected. Furthermore, the Committee requests the Government to state whether the functions of the former Peruvian Indigenous Institute in promoting the participation of indigenous peoples in all stages of the "analysis of their problems", the planning of action for their development and in any programme which affects or includes them, have been transferred to the indigenous unit of the Ministry for the Promotion of Women and Human Development.

9. Article 7. The Committee requests the Government to provide detailed information on the activities of the indigenous unit of the Ministry for the Promotion of Women and Human Development, which replaced the Peruvian Indigenous Institute, with regard to studies which have been undertaken recently on the impact of certain development programmes on the life, environment and culture of the indigenous peoples concerned, particularly as regards the impact of the arrival of oil companies in regions traditionally occupied by indigenous peoples.

10. Article 8. The Committee requests the Government to provide practical examples of the application of this Article, and particularly any judicial rulings in which account has been taken of the customs or customary laws of indigenous peoples.

11. Article 9. The Committee requests the Government to provide more detailed information on the activities of rural councils and the role that they play in dealing with offences committed by members of indigenous peoples. The Committee also requests information on the application in practice of article 149 of the Constitution. Furthermore, the Committee requests the Government to transmit copies of any judicial rulings applying section 15 of the Penal Code.

12. Article 12. The Committee requests information on the manner in which the provisions of the Constitution and of the Organic Act respecting the judicial authority are applied with regard to the right to use their own language before the judicial authorities, whether each ruling notes the presence of official interpreters and whether any financial allocation is made to give effect in practice to these legal provisions.

13. Article 14. The Committee notes that section 11 of Act No. 26505 leaves open the possibility for commercial laws in regions with a high poverty level or which are rich in minerals and oil to induce these peoples to give up their traditional lands. The Committee is of the opinion that this could facilitate the dispersion of communal territories. Furthermore, section 6 of the above Act makes any judicial action involving rights to lands intended for agricultural, stock raising or forestry subject to the procedures set out in the Code of Civil Procedure, which could constitute a disadvantage for indigenous peoples in remote areas or where they have little knowledge of the functioning of judicial procedures in relation to their land rights.

14. The Committee recalls that the Convention provides that governments shall take steps as necessary to guarantee effective protection of the rights of ownership and possession of these peoples and that adequate procedures must be established to resolve land claims by these peoples. This also means that governments have to take the necessary steps to identify the lands which the peoples concerned traditionally occupy and guarantee effective protection of their rights of ownership and possession. The Committee requests more detailed information on the manner in which the Special Project for Establishing Title to Lands and the Rural Land Registry operates in practice, the number of lands for which title has been granted to indigenous peoples and to non-indigenous persons, the financial cost of the procedure, if any, and finally the requirements to be met to obtain title to lands and the legal texts governing the procedure. The Committee requests the Government to send a copy of Legislative Decree No. 838 of 15 August 1996 on the award of land rights free of charge in the forest for indigenous and non-indigenous persons.

15. Article 15. The Committee recalls that the provisions of this Article have to be read in conjunction with Articles 6 and 7 respecting the effective consultation of the peoples concerned so that they can participate actively in decisions which concern them. Furthermore, it is necessary to consider the social, spiritual, cultural and environmental impact of any activities undertaken and to guarantee that the peoples concerned can participate effectively in decisions which may concern them. In this respect, the Committee requests the Government to provide specific information on how effect is given to this Article of the Convention, particularly with regard to the consultations held with the peoples concerned in the event of the exploration and exploitation of natural resources in indigenous areas. Moreover, the Committee requests the Government to provide detailed information on the environmental and cultural impact of exploration and exploitation activities, particularly those carried out by multinational oil companies in areas of the Amazon in which there are peoples that are still isolated and have not come into contact with the national society. Furthermore, it requests information on the possibility of enacting legal provisions which clearly establish consultation mechanisms guaranteeing the effective participation of the peoples concerned. It also requests information on the result of a general study, commissioned by the Peoples' Ombudsman in September 1998, on a complaint made by the Centre for the Development of Amazonian Indigenous Peoples (CEDIA) against the National Institute of Natural Resources (INRENA) on the situation of the native communities involved in protected natural areas. The Committee would be grateful if the Government would transmit the full text of Act No. 26631, of 12 June 1996, establishing rules on the registration of complaints for violations of environmental legislation.

16. Article 16. The Committee requests information on the provisions that are applicable to the expropriation of lands belonging to or occupied by the various indigenous communities in the country and on the manner in which this Article is applied in practice. The Committee also requests the Government to provide detailed information on whether there exists general support programmes for the return of indigenous peoples who have been displaced by violence or other circumstances against their will and, if so, to provide information on the number of indigenous persons who have returned to their traditional lands, those for whom it has not been possible to return and whether there is any type of project to relocate them in lands of equal quality and legal status to the lands they previously occupied.

17. Article 17. The Committee refers to its observation concerning the representation which has been examined by the Governing Body. It also requests the Government to provide specific information on the application of Decree No. 838 of 1996 and on the possibility of adopting legal measures which provide clear and effective protection to indigenous peoples against the purchase, possession or use of their lands by non-indigenous persons.

18. Article 18. The Committee requests the Government to provide information on the imposition of penalties on any non-indigenous persons who have intruded or fraudulently occupied lands belonging to indigenous peoples, and on the procedures to be followed in such cases.

19. Article 19. The Committee requests the Government to provide information on any specific agrarian programmes which may exist for indigenous peoples in general, both in the Andean area and in the Amazonian region, as well as on the coast. Furthermore, it requests information on whether the necessary means have been provided to these peoples for the development of their lands at the time of the granting of lands or title to them.

20. Article 20. The Committee requests the Government to provide information on: the medical assistance provided to indigenous workers through the social security system; whether they are provided with the same coverage as non-indigenous workers; and on the results of labour inspections, whether these inspections reveal marked differences in treatment and wages between indigenous and non-indigenous workers and, if so, the regions in which this type of discrimination occurs with the greatest frequency.

21. Furthermore, the Committee requests detailed information on the health and safety services of the Labour Inspectorate, particularly to enable effective participation in inspections in rural areas in which a large number of indigenous persons work. The Committee also requests the Government to provide statistics on the number of inspections in rural areas, especially those related to the work of indigenous peoples. On this point, see also the Committee's observation of 1997 on Convention No. 81.

22. Article 21. The Committee requests the Government to provide detailed information on whether indigenous peoples enjoy access under conditions of equality and participate in vocational training programmes intended for the general population, as well as on any specific measure adopted for these peoples.

23. Article 22. The Committee urges the Government to establish vocational training programmes intended for the indigenous peoples concerned and designed jointly with them to take into account the specific training needs of these peoples so that, after a determined period, they can manage and design training programmes both for their communities and for other indigenous communities. In this respect, the Office could initially provide technical assistance in the field of vocational training.

24. Articles 23 to 25. The section of the report covering these Articles was not received. The Committee requests the Government to provide information on the application of these Articles of the Convention in both law and practice.

25. Articles 26 to 30. The Committee requests the Government to provide detailed information on the practical action taken by the Government to give effect to these Articles, on the educational materials used for the training of instructors, and on any other materials used to make known to indigenous peoples their rights and duties.

26. Article 33. The Committee requests the Government to state which agency currently applies this Article of the Convention in view of the abolition of the Peruvian Indigenous Institute, and particularly the government agencies or bodies responsible for proposing legislative and other measures to the competent authorities.

27. Point VIII of the report form. The Committee reminds the Government that this point of the report form for the Convention, which was approved by the Governing Body, indicates that although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention and in preparing reports on its application. Since such information was not provided by the Government in its first report, please state whether such consultations were held in practice.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee notes with interest the Government's first report on the application of the Convention, which is being examined in detail in a request addressed directly to the Government. It hopes the Government will provide full information on the questions raised therein, as the situation of the indigenous peoples of Peru is quite complex.

2. Article 11 of the Convention. The Committee also refers to the observation made this year under Convention No. 29, concerning allegations of forced labour imposed on indigenous peoples in the country.

3. Land rights under the Convention. The Committee notes that the Governing Body concluded, at its 273rd (November 1998) Session, consideration of a representation submitted under article 24 of the Constitution, on the application of this Convention. This representation had been submitted by the General Confederation of Workers of Peru (Confederación General de Trabajadores del Péru) (CGTP). It was submitted and examined before the Committee could examine the Government's first report following ratification.

4. The representation alleged, to summarize in brief, that Act No. 26845 of 26 July 1997, the Land Titling Act for the Rural Communities of the Coastal Region, violated both the letter and the spirit of the Convention, as well as of the Peruvian Constitution and other legislation, by allowing a portion of the inhabitants of these rural communities -- mostly composed of indigenous peoples covered by the Convention -- to decide to sell to individuals land which is in fact owned by the community as a whole. It stated that this violated the very essence of the Convention and was contrary to its basic concepts such as respect for these peoples, the guarantee that they would have the right to participate in decision-making on matters affecting them, and the need to maintain their cultural identities. The Government replied that this legislation in fact merely consecrated in law a situation of fact, that these lands were already held as individual parcels, and that individual ownership was a better guarantor of economic development in this region.

5. The Governing Body concluded that there is a difficult situation in the country arising from the several different ways in which the peoples covered by the Convention are defined, and the different rights that they have compared to each other. It recalled that Article 13 of the Convention provides that "governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands ... which they occupy or otherwise use, and in particular the collective aspects of this relationship". It also recalled that Article 17, paragraph 2, of the Convention provides that these peoples "shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community", and found that there was no indication that such consultation had taken place. It recalled that the ILO's experience was that, when lands held collectively by indigenous and tribal peoples are divided and assigned to individuals or those who are not members of their communities, the exercise of their rights by the community or the indigenous peoples tends to be weakened and, in general, they ultimately lose all or most of their lands as well. The Governing Body found that, while it was not its function to determine whether collective or individual property was the most appropriate arrangement for indigenous or tribal peoples in any given situation, the Conference had decided in adopting the Convention that involving these peoples in the decision as to whether this form of ownership should change was extremely important. It asked the Government to include detailed information on the measures taken to apply these Articles of the Convention in its reports under article 22 of the Constitution.

6. The Committee endorses the conclusions and recommendations of the Governing Body (which went into greater detail than outlined here). It calls upon the Government to examine the results of this representation, and to provide detailed information in its next report on how it is carrying out the conclusions of the Governing Body on this representation.

7. Mineral exploitation -- Article 15. The Committee understands that a large number of grants of permission for mineral exploration and exploitation in regions inhabited by indigenous peoples have been accorded in the last three years. Please provide detailed information on the consultations that took place with these peoples in this respect, on the legislation and rules governing such consultation, on the studies that were carried out concerning the impact on these communities of this exploration and exploitation, and of the arrangements being made so that the communities concerned share in the management and benefits of these operations, as required by this Article.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

1. The Committee notes that the Government's first report has been received. It also notes that a representation under article 24 of the Constitution has been submitted by the General Confederation of Workers of Peru alleging non-observance by Peru of this Convention, and that this representation was declared receivable by the Governing Body at its 270th Session (November 1997).

2. In these circumstances, and in accordance with its usual practice, the Committee is postponing its examination of the Government's first report to await the outcome of the representation.