REPRESENTATION (article 24) - PERU - C169 - 1998

Report of the Committee set up to examine the representation alleging non-observance by Peru of the Indigenous and Tribal People's Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the General Confederation of Workers of Peru (CGTP)

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. I. Introduction
2. 1. By a communication dated 17 July 1997, the General Confederation of Workers of Peru (CGTP), referring to article 24 of the Constitution of the International Labour Organization, made a representation to the International Labour Office alleging that the Government of Peru has failed to secure the effective observance of the Indigenous and Tribal People's Convention, 1989 (No. 169).
3. 2. The Indigenous and Tribal People's Convention, 1989 (No. 169), was ratified by Peru on 2 February 1994 and is in force for that country.
4. 3. The provisions of the Constitution of the International Labour Organization concerning the submission of representations are as follows:
5. Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
7. Article 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
9. 4. The procedure to be followed in case of representations is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980.
10. 5. In accordance with article 1 and article 2, paragraph 1, of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Peru of it, and brought it before the Officers of the Governing Body.
11. 6. At its 270th Session (November 1997) and on the recommendation of its Officers, the Governing Body decided that the representation was receivable and set up a committee to examine it, composed of Mr. Sergio D¡az Infante (Government member, Mexico), Mr. Francisco D¡az Garaycoa (Employer member, Ecuador) and Mrs. Mar¡a Rozas Vel squez (Worker member, Chile).
12. 7. In accordance with the provisions of article 4, paragraph 1(a) and (c), of the Standing Orders, the Committee invited the Government to provide its observations on the representation and the organization which made the representation to supply any further information which it wished to bring to the attention of the Committee.
13. 8. The Government sent its observations in a communication dated 17 February 1998.
14. II. Examination of the representation
15. A. Allegations made by the General Confederation of Workers of Peru (CGTP)
16. 9. The communication from the CGTP states that despite the fact that the Government has ratified Convention No. 169, on 9 July 1997 the Congress of the Republic approved the Act respecting the establishment of title to the land of the peasant farmers' communities of the coastal region, which was promulgated by the President of Peru by Act No. 26845 of 26 July 1997. The complainant organization alleges that this Act violates the spirit and the letter of the Convention, as well as provisions which derived from it, such as those contained in the political Constitution of Peru, in Act No. 24656 (general Act respecting peasant farmers' communities) and Act No. 24657 concerning the demarcation of the boundaries of, and the establishment of title to, the territory of peasant farmers' communities, and other provisions enacted in conformity with the Convention. Another Act considered to violate the Convention is the Land Act, No. 26505 of 19 July 1995, and regulations made under it.
17. 10. The CGTP bases its allegations on the following:
18. - Peasant farmers' communities are ancestral organizations whose origin goes back to pre-Inca civilization, made up of families living on and controlling certain territories who are linked by social, economic and cultural ties, communal ownership of the land, communal labour, the development of multisectoral activities, and solidarity, reciprocity and mutual assistance among their members.
19. - The Act respecting the establishment of title to the land of the peasant farmers' communities of the coastal region was enacted for a segment of the country's rural population, the part of the peasant farmers' communities living in the coastal region. The Act thus establishes discriminatory treatment with respect to other persons and peasant farmers' organization owning rural land (sections 1, 2, 3 and 9 of the Act). It violates the provisions of the Convention which provide that indigenous peoples shall enjoy the full measure of human rights without hindrance or discrimination, guaranteeing respect for their integrity and ensuring that they benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population.
20. - The above-mentioned Act violates the autonomy of the peasant farmers' communities of the coastal region. Section 5 of the Act empowers community members who own land to take the decision to dispose of communal lands which belong to all community members whether or not they own land, bypassing the authority, constituted by the General Assembly of the Community, which is the highest ranking decision-making body recognized by Act No. 24656 (section 17) and the Civil Code (section 138).
21. - Moreover, sections 6, 7, 9 and 10, inter alia, of the Act not only violate the autonomy of peasant farmers' communities of the coastal region, but also blatantly encroach on the organization of the community and of its institutions by forcing the community to fragment its land into individual plots, instead of encouraging it to maintain it under communal ownership, recognized by article 88 of the Constitution and by Convention No. 169.
22. - The Act violates the ownership rights of the peasant farmers' communities of the coastal region and establishes procedures which destabilize the guarantee of the community's right to dispose freely of its land with the agreement of two-thirds of the qualified members of the community, meeting in a general assembly, in accordance with Act No. 24656. Moreover, the concept of "abandoned lands" is introduced only for the peasant farmers' communities of the coastal region, whereas this is already governed by section 5 of Act No. 26505, which considers land to have been abandoned only if it has been granted by the State in the form of a concession and the terms and conditions of the concession have not been met. Notwithstanding, the Act again makes provision for the concept of abandoned land only to refer to land owned by the communities that was not granted by the State in the form of a concession, and this fact constitutes an arbitrary act and breach of the law, and is a clear manifestation of the intention to destroy communal ownership and hence dissolve the community.
23. - The Act denies the right of peasant farmers' communities of the coastal region to access to the ordinary courts on equal terms with other organizations in the country. Section 16 establishes an arbitration system governing land ownership of peasant farmers' communities in the coastal region to settle land disputes, which lays down the obligation for the parties of "prior, automatic and explicit acceptance of an arbitration agreement by the members of the peasant farmers' communities of the coastal region, by community members who are landowners or by third parties, and their submission to the arbitral jurisdiction created by this Act", without affording them the possibility of recourse to the ordinary jurisdiction that is available to the rest of society.
24. - This arbitration system is arbitrary, abusive and coercive and violates the rule of law enshrined in the Constitution for peasant farmers' communities, which is in conformity with the basic principles of the Convention.
25. - The Act approved by Congress opens the way for the destruction of the peasant farmers' communities of the coastal region by promoting and facilitating the division of its lands into private and individual plots through confiscation and dispossession, without any compensation to the community, in blatant violation of the most elementary principles of respect for institutions and property. All of this jeopardizes the existence of the communities, which will disappear irrevocably if they lose their land, which provides the material basis of their existence and of their members' livelihood. The Act is essentially aimed at the gradual disappearance of the peasant farmers' communities of the coastal region.
26. 11. The communication of the CGTP considers that in addition to being unconstitutional, this Act violates the very essence of the Convention and runs counter to basic principles such as respect and participation in order to safeguard, protect and promote these peoples, and to ensure their autonomous development, and respect for their right to their natural resources, cultural identity, customs, traditions and institutions, and the exercise of human rights and fundamental freedoms without discrimination and on an equal footing with the rest of society. The Convention has been violated with Congress's approval of the Act respecting the establishment of title to land of the peasant farmers' communities of the coastal region.
27. B. The Government's reply
28. 12. In its communication dated 17 February 1998, referring to the allegation made by the CGT to the effect that Act No. 26845 respecting the establishment of title to the land of the peasant farmers' communities of the coastal region establishes discriminatory treatment with respect to other persons and peasant farmers' organization owning rural land by referring only to a segment of the country's rural population, the Government states that a basic characteristic of the peasant farmers' communities of the coastal region, which distinguishes it from the peasant farmers' communities of the mountain region and native communities, is that the large majority of its land has for a long time been cultivated in individual plots held not only by community members themselves, but also by third parties; that is persons who, without being linked to the community, farm plots with the community's consent. These individual farmers, both community members who are landowners and third parties, have called upon the State of Peru to enact provisions which would enable them to be owners of the land which they lawfully cultivate, both in order to consolidate their hereditary right to the area which has belonged to them over generations, and to facilitate their cultivation of the plot, since ownership title would entitle them to greater benefits, such as access to credit, for example, and enable them to carry out other civil and commercial transactions on a par with any landowner.
29. 13. For these reasons, the Government states that the Act in question is not discriminatory but, on the contrary, was enacted in strict conformity with the Convention. Provisions relating to the transfer of ownership of areas occupied by community members who are landowners and by third parties were already envisaged in the Land Act, No. 26505, in force since 1995. In the case of the former, clause (a) of section 10 of this Act stipulated that in order for community members who have owned the land for over one year to acquire ownership, at least 50 per cent of community members who owned land for over one year must vote in favour; in the case of third parties, clause (b) of the same section provided that at least 50 per cent of the members present in the assembly held with the necessary quorum.
30. 14. The communication states further that these provisions could not be applied in practice, since the vast area covered by the community territory combined with the fact that community members who owned land were dispersed in different areas annexed to sectors of the community, prevented assemblies from being held, which made it impossible for landowners to realize their aspiration of gaining ownership of the land they worked. Act No. 26845 therefore merely makes the procedure for establishment of title to community members who own land and third parties occupying the lands of the peasant farmer communities of the coastal region more flexible providing as it does that in the case of community members who have owned land for more than one year the agreement of landowning community members can be obtained not only in the General Assembly of the Community, but in assemblies held at annex or sector level, depending on the location of the landowning community members. In the case of third-party landowners, a procedure is established whereby they must apply first to the leaders of the community in order for the General Assembly to decide on the transfer, and only if this procedure fails can the third-party landowner have recourse to the procedure of abandonment in order to be assigned the plot.
31. 15. The Government states that Act No. 26845 does not change the system of landownership of the land belonging to the peasant farmers' communities of the coastal region, since Act No. 26505 already provided for transfer of title of the plots farmed by community landowners and third parties. Act No. 26845 thus furthers the achievement of the objectives laid down in Article 2 of the Convention by allowing the members of the peasant farmers' communities of the coastal region to exceed to ownership of the land they cultivate.
32. 16. The Government refers to the allegation that Act No. 26845 empowers a group of community members who own land to take the decision to dispose of communal lands which belong to all community members whether or not they own land, without consulting the General Assembly of the Community, the highest ranking decision-making body, thus violating the autonomy of the peasant farmers' communities of the coastal region.
33. 17. In this respect, the Government maintains that Act No. 26845 does not violate the autonomy of the peasant farmers' communities of the coastal region by allowing community members who own land to decide on the grant of title of the plots they farm, since it is not persons outside the community but the community members who own land themselves who give consent to the award of title. Moreover, landowning community members were already empowered by the Land Act, No. 26505, to take decisions and this did not give rise to any complaint from any community organization.
34. 18. The Government points out further that in order to promote agricultural activity, an effort is made to grant title to the landowners who are actually cultivating the land, since it is vitally important for this group, particularly those of limited means, to make the best use of the few resources at their disposal to achieve progress, and therefore one can understand to grant title to those actually working on the land who therefore need access to credits and facilities enabling them to develop it.
35. 19. As regards the allegation that the Act in question encroaches on the organization of the community and of its institutions by forcing it to fragment its land into individual plots, instead of encouraging it to maintain it under communal ownership, the Government maintains that the Act does not force them to fragment the land into individual plots instead of encouraging it to maintain it under communal ownership and stresses that the Act is not promoting fragmentation of any kind. On the contrary, it regulates the situation which emerged a long time ago and which has been encouraged by the peasant farmers' communities themselves. The possibility of fragmenting the land is only afforded by decision of community members themselves, who prefer to work the land individually rather than in common. All the Act does is regulate a reality which already existed, merely consolidating a de facto situation, in response to the request of the landowning community members themselves, who aspire to ownership of the land which they have been working individually, so that there can be hardly any question of confiscation or dispossession, the more so since the Act does not empower the State to appropriate any communal land.
36. 20. The complainants maintain that the Act in question violates the ownership rights of the peasant farmers' communities of the coastal region by establishing procedures which destabilize the community's right to dispose freely of its land with the agreement of two-thirds of the qualified members of the community, meeting in a general assembly. In this respect, the Government points out that the Act does not violate the ownership rights of the peasant farmers' communities of the coastal region, since the lands do not become the property of third parties, but of the community members which own them themselves, in strict conformity with the constitutional principles guaranteeing the right to communal or individual ownership of such lands, allowing such ownership to be approved democratically through a vote of half of the community members who have owned land for over one year.
37. 21. As regards the argument that the concept of "abandoned lands" is being introduced only for the peasant farmers' communities of the coastal region, whereas this is already governed by section 5 of the Land Act, No. 26505, the Government states that provision is made in article 89 of the political Constitution for the concept of abandonment of land: on the subject of peasant farmers' and native communities, the Constitution provides that "ownership of their lands is inalienable except in the case of abandonment provided for in the preceding article". Article 88 provides that "land which has been abandoned in accordance with legislation shall come under state control in order to be sold", and the concept of abandonment with reference to peasant farmer community land is entirely valid, being established by law.
38. 22. The Government states further that it should be borne in mind that the concept of abandonment of land belonging to the peasant farmers' communities of the coastal region is only a mechanism to establish title for persons who have been in peaceful and public possession of the land for at least two years; it implies that the community kept these lands in a situation other than agricultural activity during this period, without attempting to prevent the loss of ownership of the land through the relevant legal channels, which is clearly to the detriment of the community itself. It is vitally important for the recovery of agriculture that every available resource be used, i.e. that these lands be used for agricultural activity in order to achieve higher productivity which in turn will make it possible to meet the needs of the population and the community itself.
39. 23. Accordingly, the law provides that third parties in possession of the land who are living in poverty and are using the land for agricultural activity in an economic, public, peaceful and continuous manner for at least two years on the date on which the application for declaration of abandonment is submitted, may acquire the land under this procedure, provided that the poor farmers in possession have offered it for sale and the purchase was not agreed to by the community.
40. 24. The complainants also argue that Act No. 26845 respecting the establishment of title to the land of the peasant farmers' communities of the coastal region denies the right of the peasant farmers' communities of the coastal region to access to the ordinary courts on equal terms with other organizations in the country, by establishing an arbitration system governing landownership of peasant farmers' communities in the coastal region to settle land disputes. The Government states that the establishment of a compulsory arbitration system for the settlement of disputes, controversies, declarations for settling rights disputes, etc., which arise in the lands belonging to the peasant farmers' communities of the coastal region, is in conformity with the political Constitution, since paragraph (1) of article 139 allows the establishment of an arbitration jurisdiction as an independent body, such as those which already exist, for example, for the settlement of labour disputes. Moreover, it should be pointed out that this system does not apply to all cases involving lands belonging to the peasant farmers' communities of the coastal region, but only to cases of community lands which come under the Special Project for Establishment of Title to Land and Rural Land Registry (PETT).
41. III. The Committee's conclusions
42. 25. The Committee notes that a special situation exists with regard to the definition of the concept of indigenous persons in this country, since different terms are used to describe indigenous peoples, depending on their geographical location and situation. The Act at issue in this representation refers specifically to indigenous persons living in the coastal region and defined in section 3 of the Act: "Peasant farmers' communities of the coastal region are those whose lands or most of them are located on the Pacific Ocean slope, up to an altitude of 2,000 metres above sea level." The Committee notes further that the Government states that these peasant farmers' communities of the coastal region differ from the peasant farmers' communities of the highlands and the native communities in that most of their lands are cultivated in individual plots which are also farmed by third parties outside the community.
43. 26. The Committee notes that legislation has been adopted on the different forms of transfer of communal property to owners or to third parties outside the community. The argument is put forward that this regulates a de facto situation and that possession of ownership title facilitates agricultural activity. The Committee recalls that Article 13 of the Convention provides that in applying its provisions governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship. The Committee notes that section 1 of Act No. 26845 states that it is in the national interest to grant landownership title and register the lands of the peasant farmers' communities of the coastal region and their community members. It also notes that apparently no consultation process was undertaken with the indigenous peoples concerned with regard to the alienation of their lands outside the community, as provided in Article 17, paragraph 2, of the Convention. The ILO's experience with indigenous and tribal peoples has shown that when communally owned indigenous lands are divided and assigned to individuals or third parties, the exercise of their rights by indigenous communities tends to be weakened and generally end up losing all or most of the lands, resulting in a general reduction of the resources that are available to indigenous peoples when they keep their lands in common.
44. 27. As regards the allegation that the Act in question violates the autonomy of the peasant farmers' communities of the coastal region by empowering some of the community members who own land to take the decision to dispose of communal lands which belong to all community members whether or not they own land, by passing the authority constituted by the General Assembly of the Community, which is the highest ranking decision-making body, the Committee notes that according to the Government Act No. 26845 does not violate the autonomy of these communities by enabling landowning community members to give their consent to the grant of title to the plots which they farm, since it is not persons outside the community, but the landowning community members themselves who give their consent to the grant of title. The Government adds that this is necessary to promote agricultural activity by awarding title to the land to those in possession of it who are actually cultivating it so that they may have access to credit and resources enabling them to develop it.
45. 28. The Committee also notes that the complainants allege that certain sections of the Act in question blatantly encroach on the organization of the community and of its institutions by forcing the community to fragment its lands into individual plots; that the Act creates a concept of "abandoned lands" only for the peasant farmers' communities of the coastal region. The Committee notes that the Government maintains that the concept of abandonment for the lands of the peasant farmers' communities of the coastal region is provided for in the Constitution (article 89) and is a mechanism to grant title to those in peaceful, and public possession for at least two years, and not with the intention of incorporating abandoned lands into state property. The possibility of fragmenting the land is only afforded by decision of the community members themselves, who prefer to work the land individually rather than communally. In this respect, the Committee recalls that under Article 17(2) of the Convention, the peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community. In this case in particular, the Committee notes that there is no indication that consultations have been held on the implications of these measures to establish title with the people concerned as provided by the Convention.
46. 29. As regards the allegation that Act No. 26845 establishes a compulsory arbitration system governing landownership of peasant farmers' communities in the coastal region without affording them the possibility of recourse to the ordinary jurisdiction that is available to the rest of society, the Committee notes that the establishment of a compulsory arbitration system does not apply to all of the cases involving lands of the peasant farmers' communities of the coastal region, but only for cases involving community lands that come under the Special Project for Establishing Title to Lands and Rural Land Registry (PETT). In this respect, the Committee recalls that under Article 2(2)(a) of the Convention, governments shall take measures to ensure that members of indigenous and tribal peoples benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population. In this respect, the Committee requests the Government to consider the possibility of proposing to the competent legislative authorities the amendment of the provision contained in section 16 which establishes the exclusive competence of the arbitration system for certain subjects listed in the Article, and in addition to inform the Committee of Experts whether compulsory recourse to arbitral jurisdiction prevents the persons concerned from having access to the ordinary jurisdiction once arbitration has been exhausted.
47. 30. The Committee considers that it is not for the Governing Body to determine whether individual or collective ownership is most appropriate for indigenous or tribal peoples in a given situation. The Convention recalls the special importance of the relationship of indigenous peoples with the lands or territories, and in particular the collective aspects of this relationship. The Committee notes further, from its experience acquired in the application of the Convention and its predecessor, that the loss of communal land often damages the cohesion and viability of the people concerned. This is why, in the preparatory work for the Convention, many delegates took the position that lands owned by indigenous persons, and especially communal lands, should be inalienable. In a closed decision, the Conference Committee decided that Article 17 should continue the line of reasoning pursued in other parts of the Convention, according to which indigenous and tribal peoples shall decide their own priorities for the process of development (Article 7) and that they should be consulted through their representative institutions whenever consideration is being given to legislative or administrative measures which may affect them directly (Article 6).
48. 31. In the present case, apparently the Government has decided to favour individual ownership of the land and, in doing so, has ruled out the possible participation of community institutions in the decision-making process, which is not in conformity with the Convention. The Committee notes the Government's statement that this form of individual landownership is more productive and that it is only regulating an existing practice; although this may or may not be in accordance with the wishes of the peoples concerned, the Committee has not seen any indication that the indigenous peoples of the country have been consulted on the matter as required by the Convention.
49. IV. The Committee's recommendations
50. 32. The Committee recommends that the Governing Body approve this report and, in particular, in the light of the conclusions in paragraphs 25 to 31 of the report:
51. (a) that it invite the Government, in the reports due under article 22 of the Constitution on the application of the Convention, to supply detailed information on the measures taken to give effect to the provisions of the Convention referred to in the foregoing paragraphs so that the Committee of Experts on the Application of Conventions and Recommendations can follow up on these matters;
52. (b) to remind the Government of the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship, and that when communally owned indigenous lands are divided and assigned to individuals or third parties, this often weakens the exercise of their rights by the community or the indigenous peoples and in general they may end up losing all or most of the land, resulting in a general reduction of the resources that are available to indigenous peoples when they own their land communally;
53. (c) in view of the importance of collective ownership of the land for certain indigenous peoples, decisions involving legislative or administrative measures which may affect the landownership of these peoples must be taken in consultation with the representative institutions of the peoples concerned, as provided in Article 6 of the Convention;
54. (d) that it remind the Government that under Article 17(2) of the Convention, the peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community and that it inform the Committee of Experts whether consultations have been held with the peoples concerned on the implications of these measures to establish title, as provided by the Convention;
55. (e) in reminding the Government that under Article 2(2)(a) of the Convention governments shall take measures to ensure that members of indigenous and tribal peoples benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population, it suggests that it consider the possibility of proposing to the competent legislative authorities the amendment amending the provision contained in section 16 of Act No. 26845 establishing exclusive competence of the arbitration system for certain subjects listed in that section and to inform it whether the obligatory recourse to the arbitral jurisdiction prevents the person concerned from having access to the ordinary courts once arbitration has been exhausted;
56. (f) that it declare closed the procedure resulting from the representation.