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Setback in the implementation of the Prior Consultation law
Magali Zevallos Ríos
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Government refuses to publish database on indigenous peoples and excludes coastal and mountain communities, where mining activity is concentrated, from consultation processes.

The implementation of the Law of Prior Consultation of Indigenous Peoples over legislative or administrative measures that they are directly affected by — in effect for a little over a year — is facing huge setbacks in Peru. In late April, in the context of falling metals prices and slowing economic growth in China and Europe, the government temporarily waived prior consultation on 14 mining projects located on the coast and in the mountains and that are currently in exploratory phase.

Following President Ollanta Humala’s declaration — who said on Apr. 28 that the indigenous communities with consultation rights are those in the jungle and not on the coast or mountains —, government spokespersons added that a competitive economy cannot hinder investment. With the premise of reducing poverty, the head of the Ministry of Energy and Mines (MEM) Jorge Merino said that "[there is] a stock of mining investments of US$54 million" and that they should be developed as soon as possible, in order to continue funding the social programs promoted by the Executive.

 The current government had taken important steps with the legislation and regulation of the consultation process, although the latter was questioned by the indigenous peoples for failing to take their contribution into account. In September 2011, Humala symbolically enacted the Law of the Right to Prior Consultation of Indigenous and Native Peoples in the northeastern city of Bagua, where, in June 2009, violent clashes between the police and civilians resulted in the deaths of 34 people. The riots broke out as a protest against the enactment of a series of legislative decrees issued by former president Alan García (2006-2011), which would have opened indigenous Amazon land to private investment without prior consultation.

"The enactment of the law in Bagua seemed to mark a new relationship with indigenous peoples, however, it [soon] began to give priority to the discourse that indigenous peoples and prior consultation are obstacles to investment," Verónika Mendoza, congresswoman and president of the Congress’s taskforce for the monitoring of the implementation of the Prior Consultation Law, told Latinamerica Press.

Concession conflicts
The government’s interest in the exclusion of the coast and mountains from the consultation process is due to the high concentration of mining activity in these regions, comparing to the rest of the country. MEM’s map of mining projects shows that there are currently 50,516 mining concessions on the coast and in the mountains, and only 3,754 in the rainforest.

The overlay map of the lands of the indigenous farming and native Amazonian communities with mining activities — included in the most recent report by the Observatory of Mining Conflicts in Peru, that was published by the CooperAcción, Fedepaz and Grufides organizations last December — shows that 49.6 percent of the territory of the rural communities in the highlands have mining concessions, as opposed to 1.4 percent for native Amazonian communities.

"If the state does not apply prior consultation in the coast and mountains, it will create unrest, and this is what has been happening in the past years. We must not forget the painful episodes [that took place] because we did not opt for dialogue. Valuable lives were lost in Bagua, Cajamarca and Espinar, because of the imposition of extraction projects,” said Mendoza, referring to socio-environmental conflicts over the Conga gold mining project, in the North Andean department of Cajamarca and Tintaya copper mine in Cusco province of Espinar, which left 17 dead between late 2011 and mid-2012.

The congresswoman also warns that communities protected by Convention 169 on Indigenous and Tribal Peoples of the International Labour Organization (ILO) could sue the Peruvian state before the Inter-American Commission on Human Rights (IACHR).

"We would have to assume all the administrative, defense, compensation and reparation costs resulting from the complaint, for not having respected their prior consultation right,” she says.

The refusal of the Minister of Culture Luis Peirano to release the database on indigenous peoples is another obstruction by the government to delay the consultation process. One year after passing the regulation, that allowed the enforcement of the law in April 2012, it is still unknown which communities are entitled to this right. 

 “The only way this resistance can be understood is as a desire to see the mining projects implemented,” claims Mendoza.

And this eagerness claimed the head of the assistant minister of Interculturalism, Iván Lanegra Quispe, who had to resign in early May for disagreeing with Peirano’s decision.

Indigenous peoples feel betrayed
Another political decision that is hindering the implementation of the prior consultation in Peru is that the government, through MEM, is determined to go ahead with the Cañariaco project — by Canadian company Candente Copper —, in the district of Cañaris, in the northwestern province of Lambayeque. Its population, mostly Quechua-speaking, is an indigenous community recognized by the Ombudsman and by the Ministry of Culture, having been included in the process of training of Quechua interpreters by the assistant minister of Interculturalism, when the ministry began developing their database on indigenous peoples.

Faced with the recent statements by minister Merino that the copper project will still be executed and that the company has a program for dialogue with the population, Florentino Huaman Barrios, president of the Community of San Juan de Cañaris, told Latinamerica Press that in January this year the Prime Minister’s Office did set up a negotiation space, but that not a single agreement has been reached to date.

"When the government says that the company has a plan for a dialogue with the population, it is confirming that the state will not listen to the indigenous population. The state betrayed us, Ollanta Humala betrayed us, we are a predominantly Quechua-speaking population, Cañaris existed before the Republic, we have titles and resolutions dating back to 1789, in which the state recognizes us as an indigenous community, if they impose their model of development on us, we will have to appeal to the IACHR, for opposing the democratic will of the people of Cañaris,” says Barrios. He also remembers that in the Sep. 30, 2012 referendum, 95 percent of the population said no to the mining company.

According to the map of mining concessions, elaborated by CooperAcción — a non-governmental organization that works with communities affected by extractive industries —, 96 percent of the district of Cañaris is under mining concessions, mainly belonging to Cañariaco Cooper Peru, a subsidiary of Candente Copper, and Barrick Misquichilca, another Canadian company.

In mid-May, the Ministry of Culture announced the execution of consultations with indigenous communities in the regions of Loreto, in the northeast, and Puno, in the southern Andes. On May 23, the first prior consultation process in Peru began in Loreto.

Regarding this matter, Mendoza clarified that both queries will be handled by regional governments and not the central government, because these are not large mining projects. In the case of Loreto the issue is the creation of a regional reservation for the indigenous Maijuna, and in Puno — the exploitation of the Chiquitosa project, mining of a medium scale, with less controversial impact.
—Latinamerica Press


Source: CooperAcción
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