Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Peru (Ratification: 1994)

Other comments on C169

Observation

Direct Request

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The Committee notes the communication, received in March 2017, through which the General Confederation of Workers of Peru (CGTP) transmitted a comparative regional report of the Coordination of the Indigenous Organizations of the Amazon Basin (COICAI). It also notes the observations of the Autonomous Workers’ Confederation of Peru (CATP), received in November 2015, and the Government’s comments in that respect in February 2017. It also notes that on 4 September 2015, the CGTP sent the Alternative Report 2015 on compliance with the Convention prepared by seven national indigenous organizations with the support of the Indigenous Peoples Working Group of the National Coordinating Committee for Human Rights.

Article 1 of the Convention. Peoples covered by the Convention. In its previous comments, the Committee recalled that awareness of indigenous identity is a key criterion in determining the groups to be covered by the Convention. The Committee requested the Government to provide information on the operation of the official Database of Indigenous or Original Peoples (BDPI). The Government indicates that, in 2014, the Ministry of Culture approved a directive setting out guidelines for the collection of subjective and objective criteria for the identification of indigenous peoples, and a Methodological Guide explaining step by step how the authorities responsible for initiating the consultation processes should carry out the stage for the identification of indigenous peoples. The Government indicates that the Deputy Ministry for Intercultural Affairs has identified 55 indigenous or original peoples. It also notes that the BDPI contains information on 2,938 rural and native communities identified as belonging to indigenous peoples. The Government adds that this is a first checklist which will be progressively updated to incorporate communities which, in the framework of the prior consultation process, have been identified as belonging to indigenous peoples. The BDPI is compiled on the basis of the objective criteria set out in the Convention as well as on the subjective criteria of the awareness of a collective group of their original or indigenous identity. The Government indicates that the BDPI is informative but does not form the basis for the establishment of any rights. The protection of the collective rights of indigenous and original peoples is therefore recognized independently of their incorporation in the database. The Committee notes that in October 2017, three national censuses were conducted, including the third indigenous census. The Committee welcomes the inclusion, for the first time, of a question on ethnic self-identification, which the whole population must answer. The purpose of this question is to collect information on ethnic self-identification, taking into consideration elements including history and customs, such as traditions, festivals, artistic expression and other similar aspects, aimed at apprehending and better understanding each people’s cultural reality. The Committee requests the Government to communicate the results of the third indigenous census, and an indication of the information collected on the question on ethnic self-identification. The Committee also requests the Government to provide information on the updating of the BDPI and on any difficulty detected during the consultation processes relating to the identification of indigenous peoples.

Article 3. The Committee notes that the 2015 Alternative Report contains information on the situation of indigenous women, as well as statistics showing the difficulties they face in relation to access to education, land and decision-making spaces. The Report refers to the fact that patriarchal and patrimonial society thereby sustains a situation of discrimination and violence, in which indigenous women’s work becomes invisible and, in practice, they are provided with fewer opportunities and their political participation is rare. The Committee requests the Government to communicate information on the measures taken or envisaged to increase indigenous women’s access to education, the labour market and land property, as well as their participation in prior consultation processes, in equitable conditions.

Articles 2 and 33. Coordinated and systematic action. The Committee recalls that the Vice-Ministry for Intercultural Affairs is responsible for the design, preparation and oversight of public policies for guaranteeing the rights of indigenous peoples. The Committee notes the establishment in 2014 of the Working Group for Indigenous Policies (GTPI). The GTPI, composed of the Vice-Ministry for Intercultural Affairs and seven organizations representative of indigenous peoples, is tasked with proposing and following up public policies involving indigenous peoples, which require an intercultural approach to their design and application. The Committee also notes that, according to information available on the Vice-Ministry’s website, intercultural policy guidelines for indigenous peoples are being drawn up within the framework of a National Plan on Intercultural Policies. It also notes from the Alternative Report 2015 that Peru still appears to lack the institutional structures and national policies which would allow for the ongoing participation of indigenous peoples with a genuine influence in the decision-making processes. Indigenous peoples therefore insist on the need to establish a specialized body that has full administrative and budgetary independence and is able to lead and coordinate the policies and programmes on indigenous affairs. The Committee recalls that a coordinated and systematic action, with the participation of the indigenous peoples, is fundamental for the effective application of the Convention. The Committee requests the Government to provide detailed information on the measures taken by the Indigenous Policies Directorate of the Vice-Ministry of Culture to develop, implement and coordinate an indigenous policy that guarantees the collective rights of indigenous peoples prescribed in the Convention. The Committee requests the Government to indicate the measures taken to ensure the peoples concerned participate in the design, implementation and evaluation of this policy. It also requests it to provide information on the need to strengthen “indigenous institutionality”, as referred to in the Alternative Report 2015.

Article 14. Lands. The Committee noted that 16 per cent of the recognized 6,069 farming communities and 1,469 native communities still had no land ownership titles and requested the Government to send information on the land registration and titling processes conducted by regional governments, specifying the surface areas titled. The Committee notes that the Government has described in detail the regulatory framework relating to the recognition and titling of lands belonging to indigenous communities and the functions of the regional governments and the Ministry of Agriculture and Irrigation (MINAGRI) in this area, but has not provided specific information on the titling processes. In this respect, the Alternative Report 2015 indicates that the legal formalities with regard to the indigenous territories have not improved and that the regional governments have not initiated processes for the titling and formalization of those territories, citing a lack of resources and capacities. The Report also refers to the fact that the Ombudsman has warned of the lack of a budget to initiate the titling processes and the lack of guidelines on the settlement of disputes relating to the overlapping of rights. The Committee reiterates its request to the Government to provide specific and updated information on the progress achieved in the land registration and titling processes conducted by the competent national and regional authorities, on the surface areas titled in each region of the country, and on the disputes arising from these processes.

Article 15. Regulation of the use of forestry resources. In its previous comments, the Committee requested the Government to include information in its next report on the results of the review of national forestry policy and of the prior consultation process relating to the relevant articles of the regulations implementing the Forestry Act. The Committee takes due note of the detailed information provided on the various stages of the prior consultation process on the implementing regulations for the Act on Forests and Wild Fauna by the National Forestry and Forest Fauna Service (identification of peoples, participation, consultation plan, information, evaluation and dialogue). The agreements reached related closely to indigenous people’s rights to participate in the use, management and conservation of those resources. The Committee requests the Government to provide information on the practical application of the provisions on the consultation and participation of indigenous peoples in the Forestry and Forest Fauna Act and its implementing regulations in relation with the use of forestry resources.

Article 18. Protection of peoples in situations of isolation. The Committee noted the legal framework of protection for peoples in situations of isolation as well as the establishment of the Register of indigenous peoples in situations of isolation or initial contact (PIACI) and the Register for indigenous reserves. It requested the Government to provide information on the impact of the measures adopted to protect and preserve the living conditions of the PIACI. The Government recognizes that the PIACI are in an especially vulnerable situation. The Government has provided information on the various mechanisms established to implement the protection measures set out in law as well as on the process and criteria set up for the reclassification of territorial reserves as indigenous reserves, whose purpose is to protect and secure the survival and integrity of the PIACI. The Committee notes that, in its observations, the CGTP indicates that in July 2016 the first three indigenous reserves were classified, located in the department of Ucayali for peoples in isolation and/or initial contact (with a total surface area of 1.5 million hectares). The Alternative Report 2015 indicates that, despite the progress represented by the procedures for the recognition and registration of the PIACI, and the existence of a legal framework of protection, the main problem remains their implementation and the lack of a clear national strategy and actions for protection. The Committee requests the Government to indicate whether other processes are pending for the reclassification of territorial reserves as indigenous reserves and to provide information on any difficulties encountered by the authorities to protect and ensure the integrity of the PIACI and the measures taken to overcome these.

Article 25. Health. The Committee welcomes the fact that the consultation process relating to the sectoral intercultural health policy (PSSI) resulted in the adoption of the PSSI in April 2016 by the Council of Ministers. There are plans to establish the Standing Multisectoral Committee which will be responsible for issuing the Sectoral Intercultural Health Plan 2016–21, and for monitoring the implementation of the PSSI and designing mechanisms for its effective implementation. The Committee requests the Government to provide information on the adoption of the Sectoral Intercultural Health Plan and on the measures taken to implement the PSSI, as well as the results achieved regarding access to health services and recognition of traditional medicines. It also requests the Government to provide information on the participative process carried out in this respect.

Article 26. Education. In its previous comments, the Committee requested the Government to provide statistical information showing the manner in which activities undertaken in the context of bilingual intercultural education meet the specific needs of the indigenous peoples. The Committee notes that the Government recognizes that the indigenous communities’ rare opportunities to access education is a long-term structural problem and that the Ministry of Education is working to increase the provision of further training by awarding grants. The Committee welcomes the fact that, following a prior consultation process instigated by the Ministry of Education, the National Plan for Bilingual Intercultural Education 2021 (PNEIB) was adopted. The overall objective of the PNEIB is to improve all steps, levels and modules of the national education system and guarantee access for children, adolescents, young persons and adults belonging to original peoples to educational establishments in keeping with their origins. The Plan is based on four objectives: (i) increase access, retention and completion rates of indigenous pupils; (ii) guarantee the expansion of teaching and learning processes; (iii) ensure the implementation of initial and continuous EIB teacher training programmes; and (iv) promote a decentralized and participative management system to contribute to the implementation of the National Policy. The Committee notes, from the information in the National Housing Survey of the National Institute for Statistics and Information Technology, that the rate of completion of primary school for the 12–14 age group is 74.3 per cent for children whose mother tongue is indigenous and 88.1 per cent for children whose mother tongue is Spanish. The rate of completion of secondary school is 48.7 per cent for children whose mother tongue is indigenous and 71.8 per cent for children whose mother tongue is Spanish. The Committee requests the Government to provide information on the measures taken to reach the four objectives set in the National Plan for Bilingual Intercultural Education, as well as on any report or evaluation in which the impact of the measures taken in this area has been analysed. It also requests the Committee to provide information on the results achieved with regard to combating illiteracy and school drop-out and on the grants programmes aimed at improving access of indigenous peoples to university courses, disaggregated by gender.

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the ILO Constitution)

With reference to its observation, the Committee requests the Government to provide additional information on the following matters, which were examined by the tripartite committee in its report adopted in June 2016.

1. Consultations in relation to the Pakitzapango and Tambo hydroelectric power plant projects on lands traditionally occupied by Asháninka communities. The Committee notes that the Government indicated in the context of the representation examined by the tripartite committee that there was no administrative procedure for the granting of a definitive concession for the generation, transmission and distribution of these power projects, for which reasons the prior consultation process was not undertaken in relation to the Pakitzapango and Tambo hydroelectric power plant projects. The Committee observes that the tripartite committee emphasized the need to involve the Asháninka communities as early as possible in the decision-making processes in relation to the Pakitzapango and Tambo hydroelectric power plant projects. The Committee requests the Government to indicate the measures taken to ensure compliance with the requirements of Articles 6, 7, 15 and, where appropriate, 16 of the Convention.

2. Environmental pollution due to tailing spills in the rivers of the department of Huancavelica. With reference to the conclusions of the tripartite committee, the Committee requests the Government to indicate the measures adopted to ensure compliance with the Convention in the situation caused by tailing spills in the rivers of the department of Huancavelica which occurred in June 2010. The Committee also requests the Government to indicate whether the existence of the environmental pollution has been confirmed and, if so, to specify the measures adopted to protect the life and health of the members of the indigenous communities affected.

3. Illegal timber felling in the lands occupied by the Alto Tamaya-Saweto community. The Committee notes that over ten years elapsed before the recognition of the right of ownership to the lands traditionally occupied by the Alto Tamaya-Saweto indigenous community. The Committee requests the Government to indicate the measures taken to make specific progress in the investigations commenced in relation with the complaints of illegal timber felling made by the Alto Tamaya-Saweto indigenous community and in the examination of the claims made in this respect (Article 15(2) of the Convention).

4. The Committee requests the Government to provide specific updated information on the manner in which the Shawi communities have been afforded effective protection of their rights of ownership and possession of the plot referred to in the representation.