- Our rights
The Peruvian government has opted to implement a development model strongly based on the expansion of oil and mining exploration frontiers at the expense of indigenous rights. Satisfactory institutional and regulatory mechanisms that truly guarantee the collective rights of the indigenous peoples, affected by projects authorized by the central government, have not been created during last decades. However, as recognized by the jurisprudence of the United Nations Committee on the Elimination of Racial Discrimination, “development objectives are no justification for encroachments on human rights, and that along with the right to exploit natural resources, there are specific, concomitant obligations towards the local population.”
In this regard, it is worth mentioning that the Committee has expressed, in a number of documents, that the UN Convention for the Elimination of Racial Discrimination applies to indigenous and tribal populations and requires State Parties “to recognize and protect the rights of the indigenous peoples to own, develop, control and use their communal land, territories and resources...,” as well as their right to participate in and consent to activities that could affect their rights and to receive restitution by means of the right to “just, fair and prompt compensation”. In harmony therewith, the Committee has also stated, “that all appropriate measures need to be taken in order to combat and eliminate such discrimination” against indigenous tribal peoples.
CERD General Recommendation XXIII points out that one of the most serious threats the indigenous and tribal populations have been dealing with is the loss of land and resources for resource exploitation, observing that these threats are directly related to the preservation of their cultural and historical identity.
The Cordillera del Cóndor forms part of the traditional land of the Awajún and Wampís peoples, as recognized by the Peruvian government on repeated occasions, including the process in the framework of which the proposal to create the Ichigkat Muja National Park was defined. Nevertheless, the State proceeded to reduce its area in order to accommodate the mining sector, introducing an intolerable risk on the land of the Awajún and Wampís peoples in a clandestine manner.
By proceeding in this manner, among others, it has been established that Article Twenty-Seven of the International Covenant on Civil and Political Rights (ICCPR) has been violated. With respect to the scope of this article, the United Nations Commission on Human Rights (UNCHR) has declared that, “When planning actions that affect members of indigenous communities, the State party must pay primary attention to the sustainability of the indigenous culture and way of life and to the participation of members of indigenous communities in decisions that may affect them...”. The special considerations with respect to the decisions adopted by the State in indigenous territories form part of the elements that guarantee their collective ownership, non compliance with which violates this right.
In this regard, through its prolific jurisprudence on indigenous issues the Inter-American Commission of Human Rights (IACHR), in application of the provisions set forth in the American Convention on Human Rights, has determined that: “[the indigenous peoples] need to be consulted at the early stages of the plan... and not only when the need arises to obtain approval from the community.”
Similar categorical recognitions are made by the UN Declaration on Indigenous Rights of 2007 which give a scope more broader to the indigenous rights. This Declaration was actively promoted at United Nations by the Foreign Service Ministry of Peru...
The Special Rapporteur on Indigenous Peoples, about the ILO Convention 169, has also stated that the obligation of prior consultation constitutes a State obligation, even when it affects untitled land:
“25. (…) The fact that the area is located outside of a comarca [registered, n.a.] does not justify the lack of full application of the right to free, prior and informed consultation. Regardless of the legal aspect the land and natural resources in question could have in the scope of municipal law, when a project has a significant impact on the life or existence of indigenous communities, as is the case with the flooding of areas, where inhabitants live and carry out activities for their survival, as well as the resettlement of its members, consultation shall be conducted in order to obtain consent from the affected communities before the project is approved, as established in Articles Ten and Nineteen of the United Nations Declaration, as well as ILO Convention 169.”
The obligations to consult do not only involve the State, but also render private business responsibilities enforceable, as recalled by the Special Rapporteur on Indigenous Peoples in reference to Panama, given that companies are required to act in accordance with the international standards of human rights, which in this case also form part of national legislation.
Finally, with respect to mining concessions granted by means of administrative procedures not previously consulted, it is worth making reference to the statement emphasized by the Special Rapporteur in the case of the Chilean constitutional reform:
“6. The obligation of the States to consult indigenous peoples prior to adopting legislative, administrative or political measures, which may directly affect their rights and interests, is firmly based on international human rights law. Failure to comply with consultation regulations or the execution thereof, without observing its essential characteristics, compromises the international responsibility of the States. Furthermore, in countries such as Colombia or Costa Rica, failure to consult or comply with its essential requirements, implies the invalidity of public law, insofar as procedures, acts and adopted measures are concerned.”
Therefore, it is highly unlikely that administrative procedures have nothing to do with these obligations undertaken by the highest level of the Peruvian government.
This situation serves as a basis for the claims made by the indigenous organizations that led to massive demonstrations in 2008 and 2009, in addition to a prolonged strike, which culminated in the bloody events of Bagua (June 5), when the government violently intervened to clear a highway blocked by Awajún and Wampís contingents.