Consultation Law Gives New Hope to Indigenous Peoples
Update 139. April / May 2010
A year ago, Peruvians were aghast by the tragic turn of events at Bagua, a small town in the northern jungle. At least 15 policemen and five members of the Awajun indigenous tribe died in a violent clash on June 5. An additional five inhabitants of Bagua and Bagua Grande were killed by the police and another nine policemen by indigenous people at an oil pumping station. Hundreds of indigenous people were wounded, many others were tortured in the local barracks and police station. A strict curfew was imposed. There were rumours circulating - even among public officials - that scores of people had 'disappeared' and that clandestine graves had appeared.
Why is it that Peru, with its impressive record of economic growth in recent years, has reached this sort of situation? The problem is that the macroeconomic figures conceal a structural problem: the stark division between a rich minority of Peruvians and a majority of poor ones, concentrated primarily in the Andean highlands and in the Amazon jungle.
When Alan García began his second period as president in 2006, he was concerned with making investors forget the irresponsible anti-business leader that he had been in the turbulent eighties. He was keen to make Peru attractive to foreign capital at any cost. To that end, he handed out concessions on indigenous lands to mining and oil and gas companies without a whisper of consultation with the people living there. The first thing that indigenous peoples knew about the concessions was when engineers turned up to take samples from their lands and to start exploration.
García submitted to Congress several bills that restricted the rights of indigenous communities to their lands and facilitated the dissolution of their communities. After Congress rejected these draft laws, García decided to enact them by decree. So, in June 2008, taking advantage of the special facilities that Congress had given to the government to implement the Free Trade Agreement with the United States (see Peru Update No. 128), he took the initiative.
García cared little about what indigenous peoples thought. Rather, he blamed them as the source of Peru's problems. He compared indigenous communities with the dog in the manger (in Aesop's fable) who does not eat but does not allow anyone else to eat. He claimed that it was because of indigenous rights that so much land lay unproductive. His answer to this supposed "selfishness" of indigenous peoples was to divide the communities and make it easier for investors to buy the land.
President Fujimori's 1993 constitution had eliminated the ban on acquiring indigenous lands, but indigenous peoples had made it abundantly clear that they were not interested in selling them. García thus intended to take the next step, obliging them to sell, creating division among communities, and setting the scene for the necessary legal manoeuvres to take place.
However, he underestimated the capacity and resolution of indigenous peoples to resist his plans. In August 2008, two months after the decrees were issued, there was a peaceful indigenous uprising across the whole Peruvian rainforest. Such was the fury that the government was obliged to backtrack and repeal the laws that threatened the lands of indigenous communities, in particular the decree that reduced the margin of votes required for communities to sell their land.
Still, some pernicious laws remained. For instance, if a community refused to sell their lands to a mining company, the government could force them to do so, fixing the price to be paid. In April 2009, following months of fruitless visits and meetings with low ranking government officials in Lima, indigenous peoples then embarked on a second peaceful uprising.
When the police were given orders on June 5 to clear one of the main roads which had been blocked by the Awajun, nobody could have imagined the dreadful outcome. Two weeks later and in the wake of all the killings, Congress agreed to annul another two of the decree laws that had been rejected by indigenous peoples. These were Decree Law 1064 which regulated the use of land for agricultural purposes and Decree Law 1090 which regulated the development of forestry land.
Demonstrations in solidarity with Peruvian indigenous peoples took place around the world. The Peruvian government's attempts to argue that those responsible were savages, terrorists and barbarians did little to enhance its image as a tolerant regime.
In July, members of the UN Committee for the Elimination of Racial Discrimination (CERD)  asked the Peruvian government why indigenous peoples had not been consulted on any of the various measures that affected them. The Committee - as well as local indigenous leaders and many other observers - pointed to Peru's ratification in 1993 of the International Labour Organisation's Convention 169 on Indigenous and Tribal Peoples, which includes the right to be consulted.
The Peruvian government's argument was that there was no national law implementing the Convention and therefore those indigenous rights included by the Convention could not be enforced. It took tragedy in Bagua to force the government to enter into a dialogue with indigenous organisations, the right to be consulted being their most important claim.
Then finally, on May 19 2010 Congress passed a law that says that there must be prior consultation with indigenous peoples in their own language before any extractive activities can begin.
But the new law is far from perfect. It does not give indigenous peoples the right to veto projects they dislike. Still, it is unlikely where a people are wholeheartedly in opposition to a project that investors will want to persist with it. Consultation at least would allow investors to check whether they have a "social licence", the local support from the area to operate.
Another potential problem is that the new law gives a government agency, INDEPA (the National Institute for the Development of Andean, Amazonian and Afro-Peruvian Peoples), the responsibility of managing the consultation process. INDEPA is a weak institution believed to be close to the ruling APRA party. It would have been better to have given this role to the National Ombudsman's Office, the Defensoría del Pueblo.
The text of the law has used the expression "indigenous peoples" instead of peasant or natives communities that are more common expressions in Peru, but it has specified that communities would be considered as indigenous peoples.
The law still has to be enacted by President García. If he observes it, the law will return to Congress and be subject to a parliamentary debate. But, if the president approves it, indigenous peoples would at least feel that there is hope for them in Peruvian society.
By Wilfredo Ardito Vega, APRODEH
 The UN body of independent experts that monitors implementation of the UN Convention on the Elimination of All Forms of Racial Discrimination by its State parties.