UN Special Rapporteur Issues Statement on Peru

Special Rapporteur James Anaya  LIMA, PERU — Special Rapporteur on the rights of indigenous peoples, James Anaya, concluded his visit to Peru on Friday, December 13.

He went there to analyze the situation of indigenous groups in the country, including issues related to consultation, free, prior and informed consent, and the effects of extractive industry activities on indigenous peoples in isolation and initial contact.

During the visit, Special Rapporteur Anaya met with government officials, indigenous peoples and organizations, and other interested parties to discuss the situation and rights of indigenous peoples in Peru.

At the conclusion of his visit, he issued the following statement:

 Statement of the Special Rapporteur of the United Nations 

on the rights of indigenous peoples,
James Anaya, concluding his visit to Peru

December 13, 2013

I am concluding my official visit to Peru, which began on 6 December. The purpose of this visit was to learn about the situation of indigenous peoples in the country, including issues related to the query, the free, prior and informed consent, and the effects of the activities of extractive industries on indigenous peoples in isolation and in initial contact. During this visit, I have held a series of meetings with various representatives of government, national and regional level, representatives of indigenous peoples, civil society, and private companies. These meetings took place in the city of Lima, as well as in various cities, towns and indigenous communities in the departments of Puno, Cusco and Loreto.

I would like to thank the Government of Peru for their exemplary cooperation during the visit and the information you gave me regarding laws, policies and programs on indigenous issues. I would also like to thank the collaboration of the United Nations Program for Development for their indispensable support for this visit. At the same time, I express my gratitude to Pluspetrol for facilitating my visit to its facilities in Cusco and Loreto, and the information you provided on your projects in these departments. Finally, I would like to express my gratitude to the indigenous peoples, including their authorities and representative organizations, for inviting me to their territories, for the hospitality they gave me and for sharing their stories, their concerns and aspirations.

In recent days, I’ve collected a lot of information on indigenous peoples, government representatives and other sources in the country. In the following weeks, I will review the extensive information provided in order to prepare a report on the topics studied and to make a series of recommendations. This report will be published and will be submitted to the Human Rights Council of the United Nations in 2014. In advance of this report, I would now offer some preliminary observations and recommendations based on what I have seen during my visit. These comments do not reflect the full range of issues and concerns that were brought to my attention, and do not reflect all initiatives by the Government relating to indigenous issues.

In July 2009 I visited Peru in my capacity as Special Rapporteur on the rights of indigenous peoples, to examine the situation in the days following the clashes in Bagua, which killed and wounded several indigenous and non-indigenous people. The Bagua situation arose, largely because of problems related to the use of natural resources and the lack of participation of indigenous peoples in the development of legislative decrees on this subject peoples. It was clear at that time that there was a high level of discontent and mistrust between indigenous peoples and the Peruvian state.

More than four years after the events of Bagua, there is no doubt that there have been significant advances in indigenous affairs in the country, including in relation to extractive industries. One approach principal over the years has been the development of a legal framework for consultation with indigenous peoples in relation to legislative or administrative measures and plans, programs and projects affecting their rights. Today Peru is one of the few countries in the world that has a law on consultation with indigenous peoples. Note that there are still concerns among some indigenous representatives on various aspects of the law and its regulations of 2012.

In any case, as I have emphasized in the past, the challenge now is to ensure implementation of the query after a manner consistent with relevant international standards. During this visit, I found that steps have been taken towards the implementation of prior consultation in the country, including in the context of extractive industry projects. However, these steps are still in their early stages and as expressed by both the State and representatives from indigenous peoples, the Government is still in a process of building their capacity to implement the consultation methodologically , logistics and budget. I will continue to monitor and analyze the steps taken by the Government to provide more detailed comments on the subject in my final report.

A necessary condition for the development of the consultation is to create an environment of mutual trust. Indigenous peoples in Peru have suffered over the years the devastating consequences of extractive projects in their territories, a story that has resulted in a deterioration of relations between indigenous peoples and the State, which is still much to overcome. I note that the work of the National Dialogue and Sustainability Office of the Presidency of the Council of Ministers plays an important role in this regard.

Note that during my visit, indigenous leaders said repeatedly that they are not opposed to development, but that development must be consistent with their rights, including their rights to their lands, natural resources and their own aspirations and priorities for development.

An example of several negative experiences with natural resource extraction in Peru is the situation of indigenous peoples in the basins of the Pastaza, Tigre, Corrientes and Marañón rivers. These people, for more than four decades, have been affected by oil development in Block 1-AB in the department of Loreto. I have been able to verify the serious environmental problems in this area because of the oil industry. This includes contamination of soils and water bodies used by the indigenous peoples of that region which has affected their food sources and health. Note that the company Occidental Petroleum operated the project until 2000, when the company took over the contract Pluspetrol operator position. Since this time, the project has improved practices in environmental terms, within a context of developing standards progressively stronger environmental controls at the national level for the extraction of natural resources. But recently, the company was fined Pluspetrol regarding lagoon Shanshococha for undertaking remediation activities without permission.

The presence of environmental contamination from the oil industry over the past four decades represents a critical situation that must be addressed with the urgency it deserves. This emergency situation was highlighted by the Environment Ministry this year to declare “states of emergency” in the basins of the Pastaza and Corrientes rivers due to pollution situation in these basins. I notice that the company has expressed its willingness to ensure that their operations in this batch meet state standards and regulations. However, it is necessary that the Government and the company make greater efforts to ensure environmental remediation in Block 1-AB without dilatation because of a lack of clarity on corporate responsibility specified in this context.

Environmental remediation of contaminated areas has been identified by the indigenous communities of the four basins as a precondition to enter the process of consultation contemplated conduct in the context of the tender for the concession of the lot that is scheduled by 2015. Other conditions include community land titling, increased state presence in the area, compensation for 40 years of oil exploitation, and compensation for the use of their land to oil activities. I agree that these conditions are fair and conducive for a productive consultation process regarding a possible new oil concession in the area. As an important step, in October this year, the State has agreed to establish a “development board” involving government, business and communities to seek a consensual solution to meet these demands. I will continue to monitor with interest the development of the table and hopefully, the eventual consultation process. I encourage the parties to take advantage of this opportunity to approach to seek solutions to the problems.

I have also seen that in Peru are developing practices to the extraction of natural resources that are highly superior to those that led to the contamination of Block 1-AB, according to environmental regulations has been strengthened in recent years. The same company operates the project Pluspetrol Camisea gas in Block 88, in the department of Cusco. This project has employed a novel methodology to date has resulted in a relatively minimal incursion into the area of ​​operation.Project facilities in Block were built and accessed using helicopters, avoiding road construction in the area. These facilities include five platforms extraction wells that are operated remotely from the main floor of the project outside the Lot, and a whole does not occupy more than 21 hectares of the 143,500 hectares Lot. According to the company and the Government, in its 12 years of operation the project has not resulted in a decline of biodiversity or water pollution or soil in the area.

It can be deduced that the current Camisea project in Block 88 is a good practice from the point of view of nature conservation and biodiversity. Yet another issue is the human and social impact it may have on the project, which has been the subject of much debate, especially given that about 75% of Block 88 is within a reserve established to protect indigenous peoples Machiguenga, Nahua, Nanti and others who are in a position to voluntary isolation or initial contact.

The operator of the Camisea project has proposed expanding its operations in Block 88, which would mean new intensive exploration and the construction of new facilities within the Lot. In its assessment of the environmental impact study prepared by the company for the proposed expansion of its operations, the Vice-Ministry of Intercultural Ministry of Culture has highlighted a number of concerns about the potential impact of the expansion of the project on the health and welfare of uncontacted and initial contact in and out of Lot 88 indigenous groups. Clearly these groups are extremely vulnerable, so the government and the company must act with the utmost caution and not proceed with the proposed expansion without first conclusively and ensure non-violation of their human rights.

To that end, I recommend that, among other measures, the Government undertake a comprehensive study with the participation of all relevant stakeholders and experts about the presence and conditions of indigenous peoples or groups not reached in the area of ​​Block 88.Also, consider that, according to Peru’s international obligations under the Convention No. 169 on indigenous and tribal peoples and others, the Government should undertake a process of consultation with indigenous peoples in the area of ​​Lot 88, before taking a decision on the proposed expansion of the mining project. This consultation should include indigenous peoples in initial contact found in the reserve and they could see their rights affected by the expansion of the project, taking due account of their specific conditions and vulnerability.

During my visit, I came to the community of Santa Rosa Serjali a Nahua community located within the reserve and it is considered as an indigenous group in initial contact. During a community meeting, several leaders and community members, including women, young and old, emphasized their desire to be sharers in all decisions that affect them and speak for themselves. They also called the lack of basic health, education, drinking water and other State.

I believe that you must set the rules governing the state contact with members of the reserve, to the extent necessary to facilitate the delivery of government services to this and other communities in similar conditions for initial contact and consultations with them with regard to government decisions that may affect them. Furthermore, the competent state institutions must act immediately to ensure effective access to health services and other basic services for these communities.

In addition to the extraction of hydrocarbons and oil in the Amazon, in Peru there is a lot of mining activities in the Andean region. Indigenous communities with whom I met told me that have not been consulted in order to obtain their free, prior and informed regarding mining consent, and this has led in recent years to the opposition to these projects between several indigenous sectors, as well as conflicts and protests that have come in some cases violence. At the same time, take notice of the position of the Ministry of Energy and Mines yes have held consultations in the context of these projects, and therefore I will continue to examine these divergent positions. Indigenous peoples have also expressed concern about the pollution left by the mining projects, which they have not been remedied.

What could be a consequence of the lack of opportunities for indigenous peoples to participate in mining activities and the benefits derived therefrom, is the existence through the Andean region of indigenous individuals and groups engaged in mining Small-scale informal or illegal. These activities are being carried out with devastating consequences for the environment, and without regulation. Given this alarming situation, the Government should renew efforts to provide these miners formalize a path through his record while creating incentives to ensure registration. I note that as part of this process, a greater state presence in areas where informal and illegal mining and mining strengthening the regulatory framework is essential. It is necessary to ensure that indigenous peoples be consulted in order to obtain their free, prior and informed regarding future mining projects existing and consent, as well as encouraging their own indigenous peoples legitimate initiatives with respect to mining activities.

Finally, during my conversations with representatives of indigenous peoples this last week, has repeatedly expressed their perception that they are punished for opposing mining projects through improper retaliation or criminal charges. I notice that under the right to freedom of expression and participation, people and indigenous peoples can oppose and actively express their opposition to extractive projects. In addition, the prosecution of Indians for their protests should not be used as a method to suppress freedom of expression, and should be done only in cases where they have clear evidence of criminality. Peru also should strengthen its efforts to provide indigenous peoples the means necessary for the competent authorities of the State to listen and address their concerns.

In the coming months, I will be developing detailed observations and recommendations beyond these initial comments, which will be reflected in my report to the Human Rights Council. My observations and recommendations will be aimed at identifying best practices and necessary reforms in line with Convention 169 of the International Labor Organization, the Declaration on the Rights of Indigenous Peoples and other international instruments that mark international human rights obligations human in Peru. I hope this report is useful for indigenous people, the State and private companies operating in Peru, and to assist in finding solutions to the current challenges in the areas of extractive industries and indigenous peoples.

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