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The right to be consulted

By Cecilia Niezen
Peru: Indigenous people often are unable to participate in decisions that directly affect their lives. Photo: Percy Ramirez/Oxfam America

Peru’s legislature is still struggling to pass laws designed to reduce violence following the infamous Bagua incident of 2009, where police clashed with indigenous groups protesting presidential decrees that would have led to detrimental consequences for the Amazon rainforest and indigenous land rights, and were passed without genuine consultation of indigenous communities. Thirty three died in the Peruvian jungle. After the violence, the conclusion was clear: Without a clear mechanism in place to provide prior consultation to indigenous populations, these kinds of conflicts will be difficult to avoid.

The tragedy at Bagua marked the beginning of a dialogue between indigenous peoples and the Peruvian government, but Peru still does not have a progressive means of achieving community consent for oil, gas, and mining projects, according to a study supported by Oxfam and carried out by the Due Process of Law Foundation (DPLF).

After the Bagua tragedy, Peru’s national congress passed a prior consultation law -- but it was not signed by President Alan García. He returned the law to congress with modifications, which indigenous rights leaders say decrease opportunities for indigenous peoples to participate in decisions that directly affect their lives.

Little optimism

Felipe Cortez Zevallos, National Director of the National Confederation of Peruvian Communities Affected by Mining (known by its Spanish initials as CONACAMI), is not very optimistic about the process. Zevallos believes there is no political will to define and enact a prior consultation law. “It is fundamental that the law include consultation but also our consent over the use of our lands,” he says. For Zevallos, the recent conflict in Islay, Arequipa, over the Tía María mining project as well as the conflict over the Río Blanco mining project in Piura, are due to the lack of a prior consultation process.

The stalled process in Peru is what led Oxfam and DPLF to study the Andean region, which according to the director of DPLF, Katya Salazar, includes at least 15 million indigenous people and almost 6 million people of African descent. In the case of Colombia, the DPLF/Oxfam report reveals a gap between laws on paper and in practice.. Currently, the 1991 constitution permits the incorporation of international human rights laws which protect the rights of indigenous populations and people of African descent.

The laws not only protect cultural identity, but also allow for collective ownership of ancestral lands, and self-governance. In addition to many others, DPLF highlights one main obstacle which must be overcome in order to advance human rights issues in Colombia: Indigenous populations must know and understand their rights.

Ecuador faces similar challenges. In 1998, a new constitution outlined a multicultural state where international laws prevailed over local laws while honoring rights to consultation. In practice, the application of these rights is on hold. Scarce public interest along with lack of dialogue between parties remains two of the biggest obstacles.

In Peru, the DPLF/Oxfam report outlines problems stemming from large scale gold and copper mining projects. The report draws attention to communities in Junin, Ecuador, where the Cotacachi-Cayapas ecological reserve and pre-Incan archeological sites are being affected.

Update: The Inter-American Commission on Human Rights

In late March 2011, a group of representatives from Peru, Colombia, Ecuador, and Bolivia publicly outlined the current lack of a consultation process to the Inter-American Commission on Human Rights (IAHCR). Katya Salazar, Director of DPLF, explained that while the economic growth of the Andean countries is based on the extraction of natural resources and is contributing income to the national budget, it is also provoking fundamental human rights violations.

The participants requested that the IAHCR urge governments to revise current legislation, and deny any concessions that have not been reviewed by the native population.