Peru rowing backwards (fast) on prior consultation

28 May 2013

Curbs on the indigenous peoples’ right to prior consultation about projects affecting their territories continue to stoke conflict across Peru and within the cabinet, with one minister resigning in protest.

On 22 May, following a Lima meeting with Canada’s pro-business prime minister, President Humala announced that the Law on Prior Consultation (Ley de Consulta Previa) did not constitute a barrier to Canadian investment in Peru. Yet the absence of community consent is affecting projects. Canadian firm Candente Copper, which is seeking to develop the Cañariaco project in Lambayeque, against the express wish of local communities, is among the companies that have been at the centre of recent conflict over mining concessions.

The law of consulta previa was one of the first legislative acts of the Humala government when it took office in July 2011. The measure, which had been approved by the previous Congress and then vetoed by the then president Alan García, was passed by a large majority. García, famously, had criticised social organisations in the highlands and Amazon jungle for opposing the development of extractive industries on their land, citing Aesop’s fable about the dog in a manger that would not eat nor let others eat.

Despite the renewed show of congressional support, implementation depends crucially on the detailed regulations that the government will publish to put it into effect. To the mining industry at least, it quickly became clear that consulta previa would pose a major threat to future mining operations in the Peruvian highlands. Most of highland Peru, as well as the Amazon jungle, was offered in concession to extractive industries – basically mining and hydrocarbons companies – by the Toledo and García administrations.

Mining companies feared that the new legislation would oblige them to enter into time-consuming and politically costly negotiations with indigenous communities across the country even if – as the legislation states – the state, not the communities, would have the last word in cases where no agreement could be reached.

Who is indigenous?

Key among the detailed regulations was who would be deemed eligible for consulta previa. Who would be considered ‘indigenous’? For the best part of a year, the Culture Ministry was involved in producing a database detailing the communities that would benefit. This was ready in June last year. Publication of this database was repeatedly delayed, primarily because of the opposition from the mining ministry which claimed it would deter foreign investment.

As part of a keynote speech on April 28, Humala made clear that the government was considering excluding Quechua-speaking indigenous communities in the highlands from the database. “In the highlands, the majority are agrarian communities, the product of the agrarian reform,” he said, “Overwhelmingly the native communities are in the jungle”. The suggestion that only jungle-based indigenous communities would qualify for consulta previa was a blow to Iván Lanegra, the vice-minister who had been engaged in compiling the database. Lanegra had been summoned to the palace the same day to be told by Humala that highland indigenous groups would not be considered eligible for consulta previa. He resigned on May 3.

The Cañaris case

One of the cases that had ignited the row between the Lanegra’s vice-ministry of culture and the mining ministry was that of Cañaris in the highlands of Lambayeque, one of the most clear-cut examples of an indigenous community pitted against a foreign mining company. Not only do two-thirds of the population have Quechua as a first language, but the community can trace its ethnic identity back to pre-Columbian times. However, concessions for most of the land in Cañaris have been granted to Candente Copper. The local people claim that they have had no say in whether or not this should go ahead. Several people have been wounded and killed in clashes with police over recent months.

Ironically, Canada is one of the countries where prior consultation has made most progress. Maybe some of this experience might be offered to Peru.

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    The Peru Support Group exists to promote social inclusion, sustainable development and the observance of human rights in Peru. To that end the PSG highlights shortcomings in observance of established norms, whether international or local in nature, in its research, advocacy and publications. In so doing, it underscores the relationships that exist within the political system, how institutions work, and the effectiveness of policies that aim to reduce poverty and inequality within the context of sustainable development.

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