New directions for prior consultation with indigenous peoples in Peru

By: Diego Saavedra Celestino

Law, Environment and Natural Resources

Some sectors of society have established the myth that the right to consultation is an obstacle to investment, or that it only serves to question development. In general, this myth alludes to procedural issues that have added to mistrust, lack of information and knowledge about this right.

Thus, it has been postponed to attend substantive discussions such as what is consulted and when. In addition, the relationship of consultation with consent was separated from the need for indigenous territorial security for the full exercise of this right.

This myth about consultation as a barrier is related to others linked to the idea that development is only urban and modern. Thus, the Amazon or the Andes are thought of as unpopulated territories, which are only a source of resources, thus excluding the more than 55 indigenous peoples of the country.

To that extent, the right to prior consultation is one of the most concrete and effective opportunities to think about sustainable and inclusive development for territories where only urban logic should not be imposed.

Still, while we are going through a pandemic and with the urgency to reactivate the economy, some of these myths have not been overcome. Connectivity is key to access services, however, in order to generate local labor, roads have been promoted in environmentally and socially sensitive areas, without consultation. There is no lack of evidence on the relationship that roads have with deforestation, and with the increase in illegal activities. In several Amazonian regions, the increase in illegality has cost the lives of more than a dozen indigenous leaders who defended their territories.

The promotion of road infrastructure, understood as public services, was exempted from going through prior consultation: the Regulation of the Prior Consultation Law, approved by Supreme Decree No. 001-2012-MC, contained the Fifteenth Complementary Provision, which stated so. Something that went against legal instruments recognized by the State, such as ILO Convention 169, which does not indicate exceptionalities.

In 2013, within the framework of the promotion of the Amazon Waterway project, indigenous organizations requested that this project go through consultation, to which the State refused within the framework of the aforementioned provision. In 2018, AIDESEP, together with other national indigenous organizations, demanded the expulsion of this provision from the legal framework. In January 2021, the Supreme Court agreed with them, ruling through AP No. 29126-2018 that the Regulation must be corrected and that this measure must have retroactive effect.

The ruling not only allows measures related to public services to go through prior consultation, but also established 14 standards of application of the law that the State must respect. For example, that this must be prior to the adoption of the decision or implementation of the measure, from its early stages, since early notice allows evaluation and debate within the communities to adopt the response they consider appropriate.

Likewise, full participation must be guaranteed in all phases of the project or measure that would affect them. This implies recognizing the potential impact as a moment of consultation. In this way, if consent is continued or obtained, consultations should be carried out every time there is a measure that affects indigenous rights, and not only at one point in the project cycle.

In addition, the ruling addresses two pending debates in relation to prior consultation: it states that prior legislative consultation must be carried out, that is, of those bills that may affect indigenous peoples, and that this must be given previously in all the stages of the normative production process.

Likewise, it finally establishes that it is the obligation of the States not only to carry out prior consultation, but also to obtain the free, informed and prior consent of the indigenous peoples. This is undoubtedly a great advance, since it allows us to overcome the idea that the consultation is only an informational process, and reaffirms its character of intercultural dialogue.

This ruling has yet to be published in El Peruano to enter into force, which is the task of the Judiciary. Meanwhile, there are challenges to be faced and myths to be dismantled, but it is essential to assume that consultation is a right to achieve the sustainability of investments, the viability of policies, in short, to build equitable and sustainable development.

[Publirreportaje]