After five years of waiting, the Constitutional Court on 10 June delivered its final judgement on the appeal submitted by human rights and indigenous organisations against Law 30230. The case was presented by Aidesep (the Asociación Interétnica de la Selva Peruana) and the Working Group on Indigenous Peoples of the Coordinadora Nacional de Derechos Humanos.
According to the plaintiffs, many articles in the law violate the constitution by contravening fundamental human rights, including the right of indigenous peoples to their ancestral lands and the right to a clean and healthy environment.
The Court’s decision is widely perceived as a victory for indigenous rights, but a reverse for the environment. In its sentence, the Court recognised the importance of territorial and communal rights for indigenous people and acknowledged the need for effective procedures to improve land titling. It further exhorts the government to debate a new legal framework for land titling that provides for the full participation of indigenous peoples and engages them in effective prior consultation.
The Court also ruled that 15 articles in the law are not to be applied to indigenous groups as the government had failed to consult them when framing the legislation. This is the first time that there is a full recognition that indigenous groups have the right to be consulted prior to the creation and adoption of laws deemed to affect their lives.
However, the Court failed to recognise what the plaintiffs had argued with regard to the environment and it ruled that Law 30230 does not threaten the right to a healthy and clean environment. Human rights and indigenous organisations had argued that the law, introduced in 2014 with the aim of simplifying administrative procedures to promote foreign investment, has weakened the mandate and the capacity of government institutions in charge of environmental oversight.
According to Red Muqui, the sentence is a worrying reverse for the environment in that “environmental governance in the country has not only been weakened, but the balance has been tilted further to the side of favouring private investment, without clear rules to protect the right to a clean and healthy environment”.