مجلس حقوق الإنسان
3 July 2014
الدورة السابعة والعشرون
البند 3 من جدول الأعمال
تعزيز وحماية جميع حقوق الإنسان، المدنية والسياسية والاقتصادية
والاجتماعية والثقافية، بما في ذلك الحق في التنمية
تقرير المقرّر الخاص المعني بحقوق الشعوب الأصلية، السيد جيمس أنايا
حالة حقوق الشعوب الأصلية في بيرو، فيما يتصل بالصناعات الاستخراجية* **
يتناول هذا التقرير حالة حقوق الشعوب الأصلية في بيرو بناء على المعلومات التي حصل عليها المقرر الخاص خلال الزيارة التي أجراها إلى البلد في الفترة من 6 إلى 13 كانون الأول/ديسمبر 2013. وكان الغرض من تلك الزيارة هو التعرف على حالة الشعوب الأصلية في البلد، ولا سيما فيما يتعلق بآثار أنشطة الصناعات الاستخراجية وبعمليات التشاور والمشاركة في هذا السياق.
فنتيجة عدة سنوات من الأنشطة الاستخراجية في البلد، عانت العديد من الشعوب الأصلية في بيرو من آثار اجتماعية وبيئية مدمرة، ودون أن تحصل على فوائد كثيرة من هذه الأنشطة. وبسبب هذه الحالة، نشأ في أوساط الشعوب الأصلية مستوى عال من السخط على الدولة وقطاع الصناعات الاستخراجية وعدم الثقة فيهما، مما أدى إلى العديد من الاحتجاجات والمواجهات. وبالرغم من هذه التجارب السلبية، تجدر الإشارة إلى أن الشعوب الأصلية في بيرو لم تعرب عن موقف رافض للأنشطة الاستخراجية رفضاً كاملاً، لكنها شددت على ضرورة احترام حقوقها في هذا السياق.
وتبذل بيرو جهوداً جبارة لمعالجة المشاكل المرتبطة باستخراج الموارد الطبيعية التي تؤثر على الشعوب الأصلية. لكن هناك حاجة إلى بذل مزيد من الجهود لضمان سير الأنشطة الاستخراجية بطريقة تتوافق مع حقوق الشعوب الأصلية، وذلك من خلال جهد منسق وشامل للاستجابة لشواغل الشعوب الأصلية ولمتطلبات السلم الاجتماعي.
[Spanish and English only]
Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, on the situation of indigenous peoples’ rights in Peru with regard to extractive industries
I. Introduction 1–3 4
II. The background of indigenous peoples and extractive industries in Peru 4–9 4
III. Legal and regulatory framework 10–17 5
A. Land and natural resources 11–13 6
B. Extractive industries 14–17 6
IV. Impact of extractive industries on the rights of indigenous peoples 18–23 7
V. State response to indigenous movements opposed to extractive projects 24–30 8
VI. Participation, dialogue and prior consultation 31–55 10
A. Development of consultation processes within the new legal framework 33–44 10
B. Implementation of prior consultation: the case of Block 169 45–55 13
VII. Compensation and profit-sharing 56–62 16
VIII. Indigenous peoples in a situation of voluntary isolation or initial contact 63–68 17
IX. Conclusions and recommendations 69–72 19
Comments on the extension of natural gas prospection and extraction
in Block 88 of the Camisea project 22
1. This report examines the situation of the rights of indigenous peoples in Peru on the basis of information obtained during the visit of the Special Rapporteur to the country from 6 to 13 December 2013. The purpose of this visit was to assess the situation of the country’s indigenous peoples, especially in relation to the impact of the extractive industries and the consultation and involvement of indigenous peoples in that context.
2. During his visit, the Special Rapporteur held a series of meetings with various representatives of national and regional governments, indigenous peoples, civil society and private enterprises. These meetings took place in the city of Lima and in various towns, localities and indigenous communities in the departments of Puno, Cuzco and Loreto. The Special Rapporteur visited two sites in the Amazon that are symbolic of the situation faced by indigenous peoples with regard to hydrocarbon projects in Peru: the Camisea natural gas project in the department of Cuzco and the oil exploration area known as Block 1-AB (now Block 192) in the department of Loreto.
3. The Special Rapporteur wishes to thank the Government of Peru for its exemplary cooperation during the visit and for the information it provided, including after the visit, as well as the United Nations Development Programme for its invaluable help with the visit. He also wishes to express his appreciation to the Pluspetrol company for facilitating visits to its operations in Cuzco and Loreto and for the information it provided on its projects in these departments. Lastly, he wishes to express his gratitude to the indigenous peoples and organizations for their cooperation, for inviting him to visit their territory and for sharing their accounts, concerns and hopes with him.
II. The background of indigenous peoples and extractive industries in Peru
4. The present report concerns the indigenous peoples of Peru, that is, groups in various regions of the country who retain different ethnic and cultural traits that predate the colonial era. In Peruvian legal system, the term “peasant community” (comunidad campesina) includes the Aymara, Quechua and Uro indigenous communities of the Andean region, while the term “native communities” (comunidades nativas) covers the indigenous peoples of Peru’s Amazon region. The 1993 Constitution recognizes the legal personality of peasant and native communities and guarantees their autonomy in respect of their organization, community work, the use and free disposal of their land and with regard to economic and administrative matters.1
5. There are no precise data concerning the indigenous population in Peru. The only ethnic indicator used in the last national census in 2007 was the language learned during childhood. According to the figures of this census, 15.9 per cent of the population of Peru (or 3,919,314 people) learned an indigenous language during childhood, Quechua and Aymara in the Andean region being the most widely spoken indigenous languages.2 Furthermore, according to a 2007 census specifically of Amazonian indigenous peoples, there were 332,975 individuals from 60 different indigenous peoples in that region.3
6. Many of the challenges that indigenous peoples face in Peru relate to the extraction of natural resources, which has a long history in the country and is of prime importance for the national economy. In recent years, over half the country’s exports consisted of mineral or hydrocarbon products. According to 2011 figures of the Ministry of Energy and Mines, 11.54 per cent of the territory is under operating licence; 1.05 per cent is being explored or exploited, while an estimated 10 per cent of the territory has unexplored mining potential.4
7. There are no precise official figures regarding the percentage of licensed territory that concerns indigenous land, whether titled or held by custom. However, in terms of hydrocarbon operations, an estimated 88 per cent of licensed areas in the Amazon region that are currently being explored or exploited overlap with the titled land of indigenous communities, while approximately 32 per cent of licensed areas overlap with reservations set up for peoples living in a situation of isolation or initial contact.5
8. As will be noted in chap. IV, in recent years many protests have been staged against extractive projects by members of indigenous peoples. However, the Special Rapporteur observed during his visit that, in general, the representatives of indigenous peoples did not reject extractive operations outright; rather, they stressed the need for their rights to be respected, including their rights over their traditional lands and waters, and their related rights to self-determination and to define their own development priorities.
9. One of the prerequisites for the fulfilment of indigenous rights in the context of extractive projects is their participation in the strategic planning process in this sector, including the selection and delineation of blocks for hydrocarbon exploration, the definition of initiatives for attracting investment and the choice of the priority to be given to extractive operations to promote economic development. As the Special Rapporteur has emphasized before, in addition to contributing to the observance of the rights of indigenous peoples, “indigenous participation in strategic planning for resource extraction will undoubtedly lend itself to greater possibilities of agreement with indigenous peoples on specific projects” on their territories (A/HRC/24/41, para. 51). Although the implementation of prior consultation has led to the greater inclusion of indigenous peoples in the granting of licenses for extractive projects (see chap. VI below), so far the indigenous peoples in Peru have not taken part in the strategic planning concerning natural resources.
III. Legal and regulatory framework
10. Another prerequisite is the development and strengthening of a regulatory framework that fully recognizes indigenous peoples’ rights over lands and natural resources and other rights that may be affected by extractive operations; that mandates respect for those rights both in all relevant State administrative decision-making and in the behaviour of extractive companies; and that provides effective sanctions and remedies when those rights are infringed either by government or by corporate actors (A/HRC/24/41, para. 44). Although progress has been achieved in Peru on the regulatory framework protecting indigenous lands and the obligation to consult indigenous peoples, in many aspects, indigenous peoples’ rights remain inadequately protected in the face of extractive industries.
A. Land and natural resources
11. The ownership rights of peasant and native communities have been recognized under various laws, which also provide for the establishment of land titling procedures.6 Thus the land of 6,381 indigenous peasant and native communities has been titled pursuant to these laws, while approximately 1,200 peasant and native communities are awaiting a title for lands that they occupy or claim. Article 89 of the 1993 Constitution stipulates that ownership of communal lands is not time bound.
12. There have been delays in indigenous land titling in recent years. In 2009, the authority to grant indigenous land titles was devolved to the regional governments, which led to significantly fewer titles being granted, so that for example no new titles have been granted to indigenous communities in the Amazon since 2010. The cutback is partly due to the lack of proper uniform procedures to guide regional government efforts regarding land titling. Accordingly, the Ministry of Agriculture was reinstated in 2013 as the leading body for the titling of peasant and native lands. In addition, the Ministry of Culture has been charged with coordinating the efforts of the various actors involved.
13. The rights of indigenous peoples over the natural resources within their titled or traditional lands are limited by the corresponding rights and interests of the State. According to the Constitution, renewable and non-renewable resources belong to the nation, while according to national law mineral resources and hydrocarbons are the property of the State.7
B. Extractive industries
14. Since the 1990s, a growing number of laws and policies have encouraged private investment, especially in the mining and hydrocarbon industries.8 Since that time, there has been a significant increase in the number of licences awarded for the extraction of natural resources in all parts of the country, including indigenous territories.
15. In Peru, hydrocarbon activity is governed largely by the Organic Act on Hydrocarbons and other related environmental regulations. The State-owned company Perupetro, as the owner of extracted hydrocarbons, is authorized to enter into exploration and production contracts with private entities.9 Under these contracts, licensees are entitled to apply for surface-access rights to the public and private lands where hydrocarbon deposits are located, a process that includes the possibility of government expropriation of private land on grounds of national and public necessity.10 As will be discussed (see para. 39 below), Perupetro is required by national law to consult the indigenous peoples who will be affected by a license for hydrocarbon exploration and production before the executive decree approving the license is approved.11
16. Mining activity, for its part, is regulated by a complex set of laws and regulations, with the Single Consolidated Text of the General Mining Act serving as the basis for awarding mining concessions.12 Before an operating lease is signed, which gives the holder “the right to extract or concentrate the valuable part of a mineral aggregate”,13 it is necessary to obtain surface rights from the landowner, as well as to have an environmental certification, approval of water use studies and a series of other permits.14 As will be noted below (para. 40), the Ministry of Energy and Mines has drawn attention to the need to consult the indigenous populations affected at various stages during the process.
17. With respect to environmental safeguards, before any natural resources exploration or exploitation activity can take place, a contractor must submit an environmental impact study, which must be approved by the Ministry of Energy and Mines. One recent area of concern is the Ministry’s announcement that oil and gas exploration will no longer require an environmental impact study, as required under current legislation, a change that would be a serious step back in terms of environmental protection for these projects.
IV. Impact of extractive industries on the rights of indigenous peoples
18. For decades, extractive industries have had a devastating social and environmental impact on several of the country’s indigenous peoples, including on peoples in a situation of isolation or initial contact, without benefiting them greatly.
19. One concern has been that awarding concessions for the exploitation of natural resources in areas claimed by indigenous communities but for which they do not hold title may lead to disregarding any rights they might hold to the leased areas. It is worth noting that the Office of the Deputy Minister of Intercultural Relations of the Ministry of Culture has informed the Special Rapporteur that procedures for prior consultation with affected indigenous peoples will be put in place both in lands to which they hold title and in lands to which they do not (see section VI below).
20. One of the main problems to arise in the history of natural resource extraction in the country is the pollution caused by mining operations, which has still not been cleaned up. A good deal of this pollution was caused in the years before the development of the current environmental standards. It may be noted that informal and illegal mining, engaged in by roughly 60,000 persons nationwide (see para. 62 below), still takes place in entirely unregulated fashion, with devastating consequences for the environment. The Special Rapporteur also received information from community representatives from the district of Cojata (Huancané province, department of Puno) concerning the pollution caused by mining activities in the neighbouring Plurinational State of Bolivia, which has contaminated the Suches River, polluting grasslands and causing the death of alpacas, birds and other animals. Neither the Plurinational State of Bolivia nor Peru, it is alleged, is taking responsibility for the clean-up. Indigenous women have told the Special Rapporteur that the pollution is affecting them above all because of changes to the quality and availability of water, the effects on livestock production (the sole source of work for many women) and the negative effects on their health.
21. A typical case of oil pollution in indigenous lands has been that of the so-called Block 1-AB, located in the basins of the Pastaza, Tigre, Corrientes and Marañón rivers, which are inhabited by the Quechua, Kichwa, Cocama and Urarina indigenous peoples. Starting in 1971, Occidental Petroleum carried out oil operations in the block until the year 2000, when it transferred the block to Pluspetrol. Over that period, industrial waste and other waste associated with oil production was dumped directly onto the land and into the waters used by the indigenous peoples of the four river basins. Pluspetrol took on the obligations undertaken by Occidental under the current environmental regulatory framework, which involves decontaminating the soils and the water sources of Block 1-AB.
22. In recent years, the Government has taken significant steps to deal with the situation in Block 1-AB, which include monitoring activities by such agencies as the Environmental Assessment and Oversight Office. Moreover, the company has also changed its practices to comply with current environmental regulations, and is also reusing all the produced water resulting from its operations, which should make it possible to avoid additional pollution. Nonetheless, there are still serious environmental problems resulting from the pollution of the bodies of water and soils used by the indigenous populations of the area, which has affected their food sources and their health. In his travels around the area of Block 1-AB, in the district of Andoas, the Special Rapporteur was able to observe the presence of oil in the Shanshococha, Ushpayacu and Pampaliyacu pools, or in the neighbourhood, as well as junkyards filled with equipment which had been used in the course of Occidental Petroleum’s operations.
23. In 2013, the Ministry of the Environment declared states of emergency, lasting around 90 days, in the basins of the Pastaza, Corrientes and Tigre rivers, and launched immediate and short-term environmental clean-up operations and other measures to mitigate the effects of pollution on the water and food sources of the affected population. However, the indigenous peoples of these basins have not seen much in the way of results from the immediate and short-term clean-up operations undertaken under these states of emergency. An important factor in this respect has been the lack of any progress towards the development of specific regulations to identify the sources of pollution in the block and the corresponding measures required to undertake environmental rehabilitation, or to determine the organizations, public or private, responsible for undertaking such rehabilitation.
V. State response to indigenous movements opposed to extractive projects
24. In view of the history of negative impacts on indigenous peoples’ rights, the many protests that have arisen against government decisions to authorize extractive operations should come as no surprise.
25. The most widely known cases connected with protests against extractive industries in recent years include: the Bagua incidents of 2009, which resulted in the deaths of many indigenous and non-indigenous people and were the reason for an earlier visit by the Special Rapporteur to Peru (A/HRC/12/34/Add.8); the Aymara communities’ opposition to the concession awarded to the Bear Creek Mining Corporation to go ahead with the Santa Ana mining project, which led to the investigation of dozens of Aymara persons; and the protests against the Conga mining project in the Cajamarca region, which prompted the declaration of two states of emergency, in 2011 and 2021, in addition to violent clashes between demonstrators and security forces in July 2012, that left five community members dead and scores injured.
26. The Government has told the Special Rapporteur that in Peru no one is denied the right of assembly for peaceful acts of social protest, pointing out that the suspension or limitation of that right has occurred only in cases where such protests have led to breaches of the peace or violations of the rights of third parties. The Government adds that any person who believes that his or her rights have been infringed by agents of the State may seek the criminal and civil remedies provided for by law.
27. Members of indigenous communities, however, consider that the Government’s response to their protests against mining projects has in many cases been disproportionate. In this respect, there have been complaints of increasing reliance on the police and the armed forces to maintain order, as well as on government declarations of states of emergency in the areas where the protests are taking place. Concern has also been expressed about the role of police officials in the private security services of extractive companies, and about the appropriate degree of State supervision of such police officials’ performance in situations of social conflict.
28. At the same time, members of indigenous communities have had difficulty gaining access to the justice system to obtain redress for harm caused by law enforcement officials in the context of social unrest. This is partly due to the fact that the courts allegedly refuse to try members of the police and other State officials responsible for these incidents, and partly to the costs and time limits related to civil court proceedings. An alarming development in that regard is a new act published in January 2014, which amends the Criminal Code to exempt from responsibility members of the armed forces and the police who, “in their official capacity, and when using their weapons or another means of defence, cause injury or death”.15
29. At the same time, there have been allegations of undue “criminal prosecution” of indigenous persons who took part in protests against extractive operations and were accused of various offences such as extortion, disturbance of the public order, sedition and destruction of property. In addition, indigenous persons assert that they encounter problems in court cases against them on account of cultural and linguistic barriers, the lack of interpreters qualified to assist them and a shortage of funds, which compromise their ability to mount a legal defence.
30. The Government, for its part, notes that specific measures are provided to guarantee the defence rights of indigenous persons facing legal proceedings. In 2012, according to information received, the Directorate-General of the Public Defender Service assigned public defenders in indigenous matters in the departments of Amazonas, Loreto, San Martín and Ucayali, ensuring the defence of 25 indigenous persons charged in connection with the Bagua incidents. In addition, the Special Rapporteur has continued receiving information on detentions and criminal prosecutions, allegedly baseless, arising from the 2009 Bagua incidents. The Bagua district-attorney’s office apparently sought life sentences for two of the three indigenous persons imprisoned following the Bagua incidents, whereas none of the police officers responsible for the deaths of indigenous people has been similarly charged.