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Peru: New Law Granting Right of Consultation to Indigenous Peoples

(Sept. 27, 2011) On September 8, 2011, the Peruvian Congress passed by a unanimous vote the new Law on the Right of Consultation of Indigenous Peoples. (Ley 29785 del Derecho a la Consulta Previa a los Pueblos Indígenas u Originiarios Reconocido en el Convenio 169 de la Organización Internacional delTrabajo (OIT) of Aug. 8, 2011 [hereinafter L. 29785], EL PERUANO (E.P.) (Sept. 7, 2011).) The Law implements Convention 169 of 1989 of the International Labor Organization (ILO) on Indigenous and Tribal Peoples), which was ratified by Peru in 1993 (Resolución Legislativa No. 26253 of Nov. 26, 1993 (official site)) but never implemented at the national statutory level.

The new Law gives Peru's indigenous communities the right to be consulted in regard to any activity, plan, administrative or legal measure, or development or project that would involve, affect, or take place in their ancestral territories. (¿Qué derechos se harán valer con la Ley de Consulta Previa?, EL COMERCIO (Sept. 6, 2011).)

Indigenous communities will have now the right to request the opening of a consultation process if the measures in question affect their lands. The consultation process will begin with the government entity that has promoted the legislative or administrative measure at issue. If the government entity rejects the petition, the indigenous community may challenge that decision before the Specialized Technical Entity on Indigenous Affairs, within the Ministry of Culture. Once the administrative instance has been exhausted, the case may be taken before the courts. (L. 29785, art. 9.)

An agreement reached as a result of the consultation process between the indigenous communities and the government is binding and enforceable at the administrative and judicial levels (L. 29785, art. 15, ¶ 2.) If an agreement cannot be reached, the government entity involved will have to adopt all the necessary measures to secure the collective rights of the indigenous people in order to protect their rights to life and full development. (Id.)

The director of the regional office of the ILO in Lima, Peru, Carmen Moreno, stated that the passage of the new law sends a very important political message about the government of Peru's interest in respecting the rights of indigenous peoples. (OIT: Ley de Consulta a indígenas en Perú es un paso significativo, RPP NOTICIAS (Aug. 24, 2011).)

The office of the Ombudsman (Defensoría del Pueblo), through statements issued by its director, Eduardo Vega, also welcomed the new legal tool that would, in his opinion, prevent social conflicts. These conflicts had increased in the last few years due to the government's promotion of investment in energy and mining activities, which extract natural resources in the Amazon and Andean areas, the ancestral homes of the indigenous peoples, without the natives' prior consultation. (DUE PROCESS OF LAW FOUNDATION, EL DERECHO A LA CONSULTA PREVIA, LIBRE E INFORMADA DE LOS PUEBLOS INDÍGENAS: LASITUACIÓN EN BOLIVIA, COLOMBIA, ECUADOR Y PERÚ 74 (Oxfam, Mar. 2011).)

According to Vega, the government should now engage in an educative process to let the indigenous communities know and understand what their rights are under the new statute. (Defensoría: Siguiente paso es explicar a pobladores la Ley de Consulta, RPP NOTICIAS (Aug. 23, 2011).)