Land, Mining, and Prior Consultation of Indigenous Peoples in Peru 1 Land, Mining, and Prior Consultation of Indigenous Peoples in Peru Gabriel Arrisueño Fajardo, Pontifical Catholic University of Peru Luis Triveño Chan Jan The World Bank Gabriel Arrisueño Fajardo Khiabet Salazar Mujica 1

Indigenous peoples in Peru Second largest indigenous population in Latin America (approximately 7.6 million people). 55 different indigenous groups speaking 47 different languages. Historically, they have been socially and economically marginalized. However, in recent years gap has diminished and now is among the smallest in Latin America.

Economic growth, partially driven by extractive activities Since the turn of the XXI century, Peru’s GDP has grown fourfold. Monetary poverty was cut by half from 2006 to 2013 (from 49% to 22% ant the Gini fell from 51 (2004) to 44 (2014). In 2015, mining accounted for approximately 15 percent of Peru’s GDP. In 2014, mining exports represented more than 50 percent of the country’s total exports (US$ 20.4 billion). Peru is particularly vulnerable to climate change.

An enabling institutional framework for private investment According to Peru’s Constitution, mineral resources located in the subsoil belong to the nation, not to the owner of the land. Legislation governing the granting of mining rights is clear and comprehensive. Mining rights are granted without consulting the local populations but they do not automatically authorize mining activities. Companies still need to reach an agreement with the owners of the land.

Investment amid conflict I144 were socio- environmental conflicts, of which almost 4 in 5 were related to mining or hydrocarbon activities. (January 2017) Interplay between secure and clearly defined mining rights and precarious and unclear rights over land of Amazonian and Andean indigenous communities who inhabit resource-rich areas. Graphic: Defensoría del Pueblo

Changes in response to conflict Creation of the Ministry of Environmental Affairs (2008): Peru has one the world’s strictest environmental protection legal frameworks that apply to extractive activities. Creation of the Ministry of Culture (2010): Vice Ministry of Interculturalidad (VMI) is the national agency specialized on matters related to indigenous peoples. ILO Convention 169: Recognizes the right of indigenous peoples to be consulted on measures that could affect their collective rights. .

The right to prior consultation Peru was the first Latin American country to regulate the right to prior consultation of indigenous peoples by a national law enacted by Congress (Law No. 29785 of 2011) Objective: To reach an agreement or consent between the State and indigenous peoples regarding a legal or administrative measure that directly affects the latter, through an intercultural dialogue that guarantees its inclusion in the Government’s decision making process and the adoption of measures that respect their collective rights. .

The right to prior consultation Source: Ministerio de Cultura 2016

The right to prior consultation Source: Ministerio de Cultura Consulta previa is implemented by the Ministry or agency responsible of the legal or administrative measure. The Ministry of Culture, through VMI, is responsible for concerting, articulating and coordinating the implementation of consulta previa.

Important progress have been made Overcoming the resistance to acknowledge the existence of indigenous peoples in the Andean region. To date, four indigenous groups have been identified: The Quechua, the Aimara, the Uru and the Jaqaru. Graphic: Ministerio de Cultura

Important progress have been made The Ministry of mining (MINEM) have identified the administrative measures that should be consulted. Cooperation agreement between MINEM and the Ministry of Culture for the identification of indigenous peoples that could be affected by mining projects. Since 2015, all six concluded consultation processes have ended with an agreement to implement the mining process. Participation of indigenous communities in the consultation processes. Design of guidelines, protocols and instruments for the different stages of the process.

Is prior consultation achieving its primary objective? Prior consultation “…should not be conceived as another administrative step to obtain the approval of projects, but as an opportunitu to generate a genuine dialogue with indigenous peoples that allows them to integrate their visions of development in the national agenda.” World Bank (2016). La Consulta Previa en el Perú. Aprendizajes y Desafíos.

Land governance and indigenous rights Indigenous vs. communal: Peru recognizes the ownership rights of native and peasant communities to their communal lands. Governance of communal land is plagued with several problems. Uncertainty regarding the number of existing communities and their rights over land. Registered land is not backed by geo-referenced information. Unresolved—and exacerbated—intercommunal conflicts Lack of sound supervision and articulation mechanisms. Cost and barriers in administrative procedures.

Uncertainty over existence and land rights of peasant communities Number of peasant communities according to different organizations Number of peasant communities with land titles, according to different organizations

Pending issues Promoting communal recognition and land regularization: The role of the Ministry of Culture. Opportunity of consulta previa: It is performed when the discussion regarding the tranfer of land rights has already taken place. Only two consulta previa processes concerning mining activities have the dialogue stage.

Final considerations The implementation of consulta previa in the mining sector constitutes a significant step towards the inclusion of indigenous peoples in Peru’s national development dialogue. So far the outcome from consulta previa process have not justified the fear shared by some public and private actors that this instrument could become a barrier to private investment.  

Final considerations However, the shortcomings affecting the governance of communal lands can both create obstacles to the sound implementation of the process and hinder its outcomes. It is thus crucial to address such flaws. Moreover, it is critical to identify the areas in which consulta previa can be improved so as to make it an effective instrument of intercultural dialogue and a sound mechanism for the protection of the collective rights of indigenous peoples.