Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 169) relative aux peuples indigènes et tribaux, 1989 - Pérou (Ratification: 1994)

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Observation

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The Committee notes the Government’s reply to the observations of the National Confederation of Private Business Institutions (CONFIEP) received in 2021. The Committee also notes the new observations of CONFIEP, received on 31 August 2023, and the observations of the Autonomous Workers’ Confederation of Peru (CATP), received on 15 September 2023. The Committee requests the Government to provide its comments in this respect.

Article (3) of the Convention. Human rights and fundamental rights. 1. Judicial proceedings with respect to the murder of indigenous trade union leaders in Alto Tamaya–Saweto. For a number of years the Committee has been asking the Government to take the necessary steps to investigate and punish those responsible for the violent murders of four indigenous leaders from the Asháninka indigenous community of Saweto (department of Ucayali) in September 2014, after the leaders had reported illegal logging in their community. The Committee notes the Government’s indication in its report that on 23 February 2023 the Collegiate Penal Court of Ucayali handed down a ruling convicting five suspected perpetrators of the murders of aggravated premeditated homicide and sentencing them to 28 years’ imprisonment.

The Committee notes that the CATP states in its observations that: (1) on 29 August 2023, the First Criminal Appeals Chamber of the High Court of Ucayali, in response to an appeal submitted by the accused, decided to quash the decision of the criminal court which had convicted the accused and ordered new oral proceedings to be initiated; (2) in its ruling the High Court established that the lower court ruling did not fulfil the requirements for the assessment of circumstantial evidence and contained apparent motivation which should be corrected in oral proceedings; (3) the High Court also highlighted the fact that the proceedings were flawed because of a deficient investigation which had failed to furnish sufficient evidence to link the accused to the acts under investigation; (4) there were excessive delays in the investigation of the crime by the prosecution service and the necessary procedures were not implemented to locate all the perpetrators of the murders despite information having been supplied by witnesses; and (5) the information on the proceedings was withdrawn from the prosecution service without administrative proceedings having been opened against the prosecutors who had been in charge of the case.

Lastly, the CATP reiterates that the motive for the events of the case was illicit logging facilitated by the habilitación system in the area, which involves subjecting indigenous persons to forced labour and obliging them to provide the operator of the system with wood in exchange for the provision of foodstuffs, under an endless scheme of debt bondage. The CATP also claims that the perpetrators of the crime have not been arrested but are still in the vicinity of the community and continue to engage in illicit activities on the territory of the Saweto community, thereby creating a constant situation of insecurity for the families of the victims and the community; that some members of the victims’ families who moved to the city continue to receive threats; and that the chief spokesperson for the families of the murdered leaders was the victim of reprisals in the city of Pucallpa.

The Committee deeply deplores the fact that, ten years after the murders of the indigenous leaders in Alto Tamaya–Saweto, the criminal proceedings which would enable all the perpetrators and instigators of these murders to be punished have still not been concluded. The Committee recalls the importance that it attaches to the expeditious conclusion of judicial proceedings since justice delayed amounts to justice denied. The Committee also notes with concern the new allegations regarding threats and assaults on the personal integrity of members of the victims’ families. While recalling that a climate of violence and impunity constitutes a serious obstacle to the exercise of the rights of indigenous peoples established in the Convention, the Committee once again strongly urges the Government to take the urgent measures which are needed to: (i) protect the life, physical safety and psychological well-being of the members of the families of the murdered indigenous leaders; (ii) provide all the necessary resources to ensure that all the perpetrators and/or instigators of these murders are prosecuted and punished once and for all.

The Committee also notes with regret that the Government has not provided the requested information on progress in the investigations into the complaints concerning illegal logging and the cases of forced labour linked to the habilitación system in the department of Ucayali. The Committee urges the Government to provide detailed information in this respect.

2. Protection of indigenous human rights defenders. The Committee notes that the Government, in reply to its comments on the need to protect the integrity of indigenous peoples and their leaders in exercising the defence of their rights, reports the adoption in 2022 of the Protocol on prosecution action to prevent and investigate crimes against human rights defenders, the aims of which are to: (i) establish procedures to prevent criminal conduct related to damaging the legal assets of these rights defenders; (ii) define guidelines for the investigation of crimes against rights defenders; and (iii) define procedures for the care and protection of rights defenders, including their family members and witnesses. The protocol includes indigenous peoples in the category of human rights defenders.

The Government also indicates that, as part of the inter-sectoral mechanism for the protection of human rights defenders, the Register of risk situations faced by human rights defenders was established. The register makes it possible to collect, analyse and manage information on high-risk areas for the work of human rights defenders and the most frequent patterns of attack, in order to implement prevention and protection measures. The inter-sectoral mechanism can be activated through an early warning procedure which allows the adoption of urgent measures to eliminate or reduce the risks faced by human rights defenders. The Committee also notes that the Ministry of Justice and Human Rights (Ministry of Justice) has promoted the setting up of regional committees for the protection of human rights defenders in order to address and follow up on risk situations for rights defenders who are faced with illicit activities such as drug trafficking, illegal logging and land trafficking. As at 2023, three regional committees had been established in the regions of Madre de Dios, Ucayali and San Martín. The Ministry of Justice has also conducted high-level visits to areas considered high-risk, such as Ucayali, Huánuco, Piura and Madre de Dios. In this context, the Ministry has met indigenous representatives from the Peruvian rainforest in order to conduct a dialogue on making progress on the protection of human rights defenders.

The Committee notes that CONFIEP states in its observations that the increase in illegal and informal activities such as illegal logging and mining within the territories of indigenous peoples in the country is a source of the utmost concern, particularly because the indigenous peoples are being threatened in this context while defending their territories and the environment. CONFIEP adds that the Government only provides for reactive measures with respect to human rights defenders, and so it only activates an alert or takes action after a harmful incident has occurred.

The Committee also notes the information from the Ombuds Office regarding the murder of the indigenous leader Santiago Contoricón in April 2023 after reporting the existence of illegal activities in the Asháninka territory in the province of Satipo. It also notes that in a joint communication issued on 30 November 2023, four ministries reported the murder of the indigenous leader Quinto Inuma Alvarado, apu (chief) of the indigenous community of Santa Rosillo de Yanayacu (region of San Martin) when he was returning to his community. Quinto Inuma Alvarado was an indigenous environmental defender who, according to the official newspaper El Peruano, was an activist against illegal logging. According to the communication, the national police is undertaking a thorough investigation of this crime.

The Committee further notes that according to the report entitled Observations on the human rights situation in the context of the protests in Peru, published on 19 October 2023 by the Office of the United Nations High Commissioner for Human Rights, there are various testimonies that during the national protests that occurred between December 2022 and September 2023: (i) there was an excessive use of force by the police against indigenous persons in regions outside the capital; and (ii) there were stigmatizing speeches and racist harassment inciting violence against demonstrators belonging to indigenous communities, particularly indigenous women. The Committee also notes that, according to the report published in 2023 by the Inter-American Commission on Human Rights concerning the human rights situation in Peru in the context of the social protests, the protests initiated in December 2022 were mostly driven by indigenous peoples in the regions of Apurímac, Ayacucho, Puno and Arequipa, where the highest numbers of victims of violence were recorded.

The Committee notes with deep concern this information indicating the persistence of acts of violence and attempts against the life of indigenous persons in the context of defence of their rights.

While commending the various measures adopted by the Government to prevent and investigate acts of violence and protect the integrity of indigenous human rights defenders, including in remote areas, the Committee takes note with deep concern of the persistence of such acts and therefore strongly urges the Government to intensify its efforts to guarantee a climate free of any kind of violence for indigenous peoples and their defenders.In this regard, the Committee requests the Government to take the necessary steps to prevent, investigate and punish not only the excessive use of force by public law enforcement bodies against indigenous persons in the context of protests in defence of their rights but also the use of racist speeches inciting violence.The Committee also requests the Government to strengthen the inter-sectoral mechanism for the protection of human rights defenders, in particular to protect indigenous rights defenders who are faced with illicit activities such as illegal logging and mining in the Amazon region.

Article 6. Consultation. In reply to the observations of CONFIEP on the need to follow up on agreements reached as a result of consultations, the Government indicates that such follow-up action is taken through the Standing Multisectoral Committee for the Application of the Right to Consultation, attached to the Ministry of Culture, in which national indigenous peoples’ organizations participate. The Ministry of Culture also provides assistance to entities that promote consultations on key points of agreements (beneficiaries, activities to be performed and related deadlines, source of verification, and so on). As at September 2023, a total of 1,155 agreements had been processed by the technical secretariat of the Multisectoral Committee, corresponding to 45 consultation processes. The Government also indicates that between July 2021 and April 2023 the Directorate for Prior Consultation trained 4,570 public officials and indigenous persons.

The Committee notes that the Ombuds Office of Peru, in the annex to its report published on 28 September 2023 relating to the fourth cycle of the universal periodic review, refers to the lack of regulations covering the holding of consultations with indigenous peoples on legislative measures.

The Committee encourages the Government to continue taking steps to ensure the effective implementation of processes of consultation with the indigenous peoples and requests the Government to provide information on the activities of the Standing Multisectoral Committee for the Application of the Right to Consultation, explaining the manner in which the aforementioned Committee follows up on agreements and takes action in cases of non-compliance with agreements concluded in the consultation processes. The Committee also requests the Government to provide information on the applicable procedure for consulting indigenous peoples on measures which may affect them directly.

Articles 7 and 15. Consultation and impact assessment. Mining projects. The Committee notes the Government’s indication that, further to the adoption of Ministerial Decision No. 254-2021-MINEM/DM, the body responsible for implementing consultations in the mining sector is the General Office of Social Management (OGGS) at the Ministry of Energy and Mining. As at 2023, the OGGS has carried out 34 consultation processes, of which 27 correspond to mining exploration projects and 7 to exploitation projects. The Committee notes that, under section 3 of the Decision, the consultation process can begin once the corresponding environmental certification has been issued by the Ministry of the Environment and before the mining concession is authorized. The OGGS will proceed to identify whether there are indigenous peoples whose rights might be affected only after approval of the environmental management instrument, which must include information from the mining operator on the possible impact on collective rights. The Committee also notes that the Ombuds Office, in its report published on 28 September 2022 relating to the fourth cycle of the universal periodic review, indicates that the Government has not guaranteed any consultation of indigenous peoples during the environmental impact assessment stage on measures which may affect them directly.

The Committee recalls that, under Article 7(3) of the Convention, governments must ensure that, whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The Committee considers that, in order for the consultation process to be full and indigenous peoples to have all the necessary information to take an informed decision, the cooperation of these peoples must be ensured with regard to both the environmental impact assessment and the assessment of the social, spiritual and cultural impact of the project in question.

The Committee also notes the detailed observations of CONFIEP regarding the implementation of prior consultation in the mining sector. In this regard, the Committee notes CONFIEP’s claim that there is no clarity regarding the way in which the indigenous peoples to be consulted are identified or regarding the way in which the impact is determined; nor is there any clear framework on how to proceed when indigenous peoples refuse to participate in consultations.

The Committee requests the Government to take steps to identify and address the difficulties which continue to arise in the implementation of consultation processes in the mining sector and requests it to provide information on:

how provision is made to secure the cooperation of the indigenous peoples in assessing the social, spiritual, cultural and environmental impact of mining exploration or exploitation projects which may affect their rights;
the criteria used by the Ministry of Energy and Mining to determine which indigenous peoples must be consulted with regard to a project; and
the measures taken to inform indigenous peoples regarding the importance of consultation and to promote their participation in these processes.

Article 14. Lands. The Committee notes with regret that the Government has not provided any information on progress regarding processes for the identification, demarcation and titling of the lands traditionally occupied by the peoples covered by the Convention.

The Committee notes that the Ombuds Office emphasizes in its report of 28 September 2022 (attached) that there are some 1,700 native and campesino (peasant farming) communities for which land titling is pending, and refers to the need to simplify existing administrative procedures for the legal and physical regularization of the communities. The Committee also notes that the United Nations Human Rights Committee, in its concluding observations on Peru, expressed concern at the lack of legal certainty regarding the titling of indigenous territories and at the high levels of pollution in these territories from hydrocarbons and minerals (CCPR/C/PER/CO/6).

The Committee once again urges the Government to take the necessary steps to move forward in the processes for the identification, demarcation and regularization of the lands traditionally occupied by the peoples covered by the Convention in the various regions of the country, and requests the Government to provide detailed information in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2024.]