Letter from Puno: Using the law to protect community rights

1 April 2019

Jatucachi is an indigenous community dedicated to raising alpaca in the highlands of Puno in an area straddling the border between Puno and Moquegua regions. It is a remote place, and the community lands stretch over a large area of barren mountain terrain. But it has become the centre of legal attention as the indigenous leaders, with the help of a local NGO, struggle to enforce their rights to prior consultation (consulta previa) against a number of mining companies.

The case is against Ingemmet and the Ministry of Energy and Mines. It concerns the duty of the state, under existing legislation, to enter into consultation with local communities before initiating mining concessions. In the first hearing, held in the city of Puno last year, the community (unusually) won the case, with legal representation by lawyers from Derechos Humanos y Medio Ambiente (DHUMA), an NGO based in Puno. The state immediately appealed. A second hearing was held earlier this month; a ruling is expected in the very near future.

The state’s defence is based on procedural points, alleging that the communities did not follow the prescribed rules. “They don’t challenge the substance of the case because they know we are in the right” says Cristóbal Yugra, a lawyer and DHUMA’s executive director.

The ruling will have major significance in the battle to ensure that indigenous communities are consulted before concessions are granted to mining companies on community lands. The mining industry has fought tooth and nail to ensure that the legislation on consulta previa is not applied to highland communities on the grounds that these are not ‘indigenous’. Jatucachi, an Aymaran community, is emblematic; its people could hardly be more indigenous.

The community insists that consulta previa must take place before a concession is granted as stipulated in ILO Convention 169 on the rights of indigenous peoples, which entered into effect in Peru on February 2, 1995; in this case the state alleges that it should take place only before exploitation begins.

The case is among a number of similar actions being fought by DHUMA with the Instituto de Defensa Legal (IDL), a Lima based NGO, as co-defender. Two others raise similar issues, those relating to Chila Chambilla and Chila Pucara, both Aymara communities in the district of Juli in the south of Puno region.

According to Yugra, these legal battles are a matter of life and death to the communities concerned. ”People’s existence is in doubt” he says since mining transforms their culture and forms of sustenance, “the state should be there to protect their rights as Peruvian citizens”.

DHUMA has issued legal challenges based on the constitutional duty of the state to protect its citizens. It has brought in international support to back up such acciones de amparo. Two such cases have been before the Constitutional Tribunal since 2011.

The NGO was closely involved in defending those involved in the so-called aymarazo, a protest in 2011 against a concession awarded to Bear Creek, a Canadian mining company which forced the then García government to call a halt to the project. One of those accused was Walter Aduviri, the current regional governor of Puno. He still faces legal charges, though the charge of extortion has now been dropped along with the warrant for his arrest.

DHUMA, which involves lawyers, educators, social communicators and anthropologists along with others who defend consulta previa, seek to use judicial means to reverse government policy. “The only other alternative open to communities is social protest” says Patricia Ryan, a Maryknoll sister who was one of the group’s founders, “and what we are seeing is the criminalisation of protest”. The group’s links to US human rights defenders has given it extra muscle “The last thing they [the government] want is international attention” Ryan adds.

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