Judicial ruling affirms the right to free, prior and informed consent in a historic decision

10 April 2017

On 28 March, the Fourth Constitutional Court in Lima ruled in favour of an appeal brought forward in August 2014 by Indigenous awajún and wampi organizations, together with civil society organizations IDL, CAAAP, SAIPE and Cooperacción, in relation to the licencing of oil exploration and exploitation activities in Lote 116, which is found in the Cenepa district, province of Condorcanqui, Amazonas region. The licence was awarded to two oil companies, the Peruvian subsidiary of Pacific Stratus Energy, and Marquel et Prom, without first consulting the Indigenous communities living in the area.

In its sentence, the Court declared “the appeal is founded on the right to citizen participation (prior consultation and consent) of the native communities that are represented by those filing the appeal, because the state authorities omitted delivering a consultation process, and because of the threat to the right to their territories, health and cultural identity…”.

According to civil society organizations Cooperacción, CAAAP, IDL and SAIPE, what is especially important about this ruling is the fact that it not only ruled in favour of the appellants, but also ordered the authorities to nullify the licencing agreement they had with the oil companies, as well as to refrain from re-issuing a new licence before submitting any licence agreement or environmental impact assessment for consultation to the communities affected and, more importantly, obtaining their consent. The decision also ordered the Ministry of Energy and Mines to make sure that the oil companies stop any exploration activities currently undertaken and to leave the area.

For its part, the reaction of the Peruvian Hydrocarbons Society (Sociedad Peruana de Hidrocarburos) to the ruling was quite the opposite. Felipe Canturias, its president, expressed concerns that this sentence gives a wrong signal to investors, in that it shows that any contract signed with the Peruvian state is fragile. He also expressed hopes that the Ministry of Energy and Mines and Petroperu will file an appeal against the Court’s decision and ultimately obtain a ruling that favours investment in the country.

Civil society organizations have praised the precedent the ruling sets, reaffirming the Inter-American Court of Human Rights previous rulings that recognise the right to free, prior and informed consent.

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