Further weakening of the Consulta Previa law
13 May 2018
An important part of setting up the institutions to implement the protection represented in principle by Peru's agreement to commit to the ILO Convention 169 has been a piece of secondary legislation of 2012. This required the Council of Ministers to create a multi-sectoral Commission to oversee the application of the right to consulta previa.
In 2013 the secondary legislation was implemented. A significant aspect of the decree was that the commission could convoke not only experts but also indigenous communities themselves. The functions of the Commission included the establishment of mechanisms of coordination and cooperation with indigenous organisations, as well as with the private sector and civil society (http://cooperaccion.org.pe/la-consulta-previa-a-la-deriva/ ). The Commission was sited in the Council of Ministers, signifying its centrality.
In July 2016, however, a further decree significantly weakened the new institution, by moving the location of the Commission from the Council of Ministers to the Ministry of Culture, and reducing its initially wide remit to evaluate the use of processes and the development of norms. The decree left the commission with the function of following the cases of consultation and producing an annual report.
Now, on 17 April 2018, we hear the results of a request for information on the Commission's activities, by the Coordinadora Nacional de Derechos Humanos.
The Coordinadora reports that the Commission has met only three times and has been principally concerned with regulations. There has on no occasion been any participation of indigenous communities.
This finding leads the NGO Cooperacción to emphasize, in a report dated 3 May, the conclusion it reached in an earlier report in January of this year: "Consulta previa has become a mere formality and occurs only in the last stages of decision taking " - ie too late to have any real meaning.