Peru’s New Consultation Law: does consultation mean consent?

This past Tuesday, Peru’s new president Ollanta Humala enacted a law which will require that energy companies and mining companies seeking to start new projects will first have to consult the local and indigenous communities on those lands.

He said: “We want to make sure … that they are treated like citizens, not like little children who are not asked about anything.”

The law was passed unanimously by Congress, without any abstentions. The U.N.’s special rapporteur on the rights of indigenous peoples, James Anaya, has praised the law, saying: “I hope that this is indicative of a strong commitment by the Peruvian State to respond to the demands of indigenous peoples to be consulted about measures that directly affect them, and in particular about extractive industry projects in and around their territories.”

The law comes at a time when Latinamerica Press reports that three-quarters of Peru’s Amazonian Basin has been concessioned off to extractive industries, and when last year it’s coverage by oil and gas concessions was reported at around 41%.

AIDESEP, Peru’s largest Amazonian Indigenous Federation, has expressed support for the law and views it as an important step forward in the recognition of indigenous rights. It is, however, concerned with the implementation of the law, pointing out that the Ministry in charge of implementing the law (El Ministerio de Interculturalidad) lacks the resources to confront such a large issue.

According to Amazon Watch Executive Director Atossa Soltani, “Indigenous peoples’ right of free, prior, and informed consent has been reaffirmed in recent years through the UN Declaration on the Rights of Indigenous Peoples and legal judgments of the Inter-American Court on Human Rights. (…)  Consultation, when truly carried out in good faith, is an important element for promoting that right.”

Speaking about AIDESEP, Soltani added: “Peru’s indigenous movement deserves tremendous credit for their persistent advocacy,”  “They provided constructive input into the bill’s draft text last year and then lobbied vociferously after President Garcia offered eight line-item vetoes.”

The law, however, does not give communities the right to “veto” a project. Latinamerica Press reports that: ” Even though the norm does not make the indigenous vote binding, or give the communities a right to a veto, it does establish that the communities and the government must “reach an agreement or consent” in legislative or administrative issues that affect the communities directly, “through an inter-cultural dialogue that guarantees their inclusion in the state’s decision-making processes and the adoption of measures that respect their collective rights.”

While the idea of giving indigenous communities the right to say “yes” or “yes” to a project seems somewhat questionable, this is certainly a step in the right direction, and one that will hopefully be implemented appropriately and transparently.

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