Free determination: a path to strengthen the right to prior consultation in Peru

In Peru they have been consolidating in different territories of the Amazoninitiatives called Autonomous Territorial Governments, as a proposal from indigenous peoples to strengthen the management of their territories. In a recent article, the Interethnic Association for the Development of the Peruvian Jungle (AIDESEP) pointed out that these processes do not represent a disintegration of the State, much less a separatist initiative. On the contrary, they seek to exercise their rights fully to confront current threats, and in that context achieve effective and intercultural coordination with the Peruvian State.

That is, these experiences express the exercise of the right to self-determination of indigenous peoples, seeking to be taken into account and respected by Peru. This implies, among other things, that they are part of the decisions made by the State and that may affect their rights. For these to have the consent of the indigenous peoples, the right to prior consultation emerged as a political process that ensures including their proposals under principles such as good faith; have prior and quality information; that there be no coercion; that is fully intercultural, etc.

Although the relationship between prior consultation, self-determination and consent of indigenous peoples is evident; Consultation is still perceived by some of them as an administrative process, or a requirement for some extractive project. Distrust in its implementation is thus legitimized. Faced with this, it is key to remember the political nature of the consultation so that it fulfills its objective of building and obtaining the consent of indigenous peoples. On the other hand, part of the private sector and the State perceive consultation as an obstacle or limitation to the promotion of investments. This narrative has legitimized various regulatory and political proposals to shorten the duration of the prior consultation, make it virtual, or even rulings from the Constitutional Court that ignore the fundamental and constitutional nature of the aforementioned right (STC 1003/2021, STC 27/2022 ).

In this adverse scenario, AIDESEP achieved a judicial triumph with Popular Action Ruling No. 29126-2018 LIMA (2022), which corrects the regulations of the Prior Consultation Law. Thus, the exceptional requirement that public service projects such as roads are not consulted was repealed. Furthermore, the ruling recalls 14 international standards that emphasize that the objective of consultation is consent, breaking with procedural logic and seeking to go to the spirit of the law. And more recently in 2023, through file No. 03326-2017-PA/TC, the Constitutional Court corrected and ruled that prior consultation is constitutional and is a fundamental right.

Currently, there are a series of road connectivity initiatives in Amazon regions that show weak environmental, engineering and social impact analyses. Thus, these initiatives, far from being a contribution to development, become a risk for the governance of the territories, repeating cases such as the Interoceanic South, in Madre de Dios. Projects such as the Pucallpa – Cruzeiro do Sul road, in Ucayali; Bellavista – Mazán – Salvador – El Estrecho, in Loreto; They overlap not only with territories of indigenous communities, but with protected natural areas and sensitive areas for the protection of biodiversity. The self-determination that indigenous peoples have been strengthening also proposes securing the territories to protect them from illegal activities and the environmental impacts of extractive activities; hence the relevance of these bets.

The exercise of self-determination opens an opportunity to strengthen other rights, such as prior consultation. Thus, the people themselves have been evaluating what they have achieved, and as in other parts of the Amazon, building, from their learning and cultural values, proposals for their own protocols to complement and strengthen the exercise of the right to consultation. Ensuring these rights implies betting on guaranteeing a different, sustainable development, a healthy Amazon, and with it, the protection of our future generations.

[PUBLIRREPORTAJE]