The ruling, issued without prior consultation, affects indigenous communities for which the Ministry of Agriculture has yet to provide land titles. It contravenes decisions of the Constitutional Court and ILO Convention 169. While the ruling may eventually be overturned, meanwhile it will divert indigenous organisations’ attention from pursuit of urgent and ongoing territorial demands. It may also jeopardise environmental standards.
Issued earlier in January, the ministerial resolution for the demarcation of territory of indigenous territory is incompatible with ILO 169’s ruling that indigenous peoples are the proprietors of the territories that they have traditionally occupied. In 2009, the Constitutional Tribunal confirmed ILO 169’s provision that any ruling that directly affects indigenous communities should be the subject of prior consultation with them.
There is a legal precedent for overturning ministerial decisions taken without consultation. In 2015 indigenous organisations successfully appealed against additional and onerous technical and bureaucratic requirements for community land titling.
As we saw last week, in view of the determination of the ministry to curtail indigenous land rights it is not surprising that indigenous organisations are turning away from the restrictive community land titles in favour of the full ownership of indigenous territories that international human rights law supports.
This latest restriction of their land rights in favour of the areas of natural protection will only stoke the cause for indigenous territories which are better protected than communities. Areas of environmental protection (ANPs) are proliferating, especially in areas of land shortage such as San Martin, and these protected areas are all too often vulnerable to logging and other illegal activities.