Law of Prior Consultation to Indigenous Peoples

This article was originally drafted by the FORO Nacional/Internacional for the newsletter “South America Trends and Challenges for Development” as part of the Rockefeller Foundation’s Searchlight Process. For more Searchlight content on futurechallenges.org, please click here.

Sixteen years after Peru signed the International Labor Organization (ILO) Convention 169, on Indigenous and Tribal Peoples, the Congress approved the “Law of the right to prior consultations to indigenous and native people.” With this Law, the state assumes the responsibility to promote and guarantee the right of indigenous people to have a voice in the adoption of administrative or legislative measures that affect them as a community.

Various sectors of the state, business and civil society have welcomed this Law and recognized the measure as part of a new direction of public policies that seek to include the poor and vulnerable and protect more effectively their political and social rights. Moreover, this Law has the potential to challenge the historical indifference to the marginalized groups that populate large areas of the Peruvian territory. It could also contribute to bringing more visibility to the different layers of cultural identities in a country historically marked by fragmentation and heterogeneous levels of development.

During the past two decades, the dynamism of the economy and private investment have relied on the exploration and exploitation of natural resources, which has caused conflicts in areas occupied by indigenous people, where state presence also tends to be weak. Implementing and adequately regulating this Law, thus, has the potential to strengthen the rule of law in Peru. The inclusion of marginalized groups creates a forum for these groups to introduce their demands and influence the public agenda without resorting to violence. Moreover, the active role of the state could effectively articulate the interests of private companies and indigenous peoples, ensuring that their rights are protected. A potent message will be sent for a more rational and inclusive land management, in order to define where and under which conditions mining, agriculture and other activities are compatible with local livelihoods.

Nevertheless, there are serious challenges that are making the negotiations to implement this law extremely complex. The first relates to defining who the subjects of consultations would be. While Peru recognizes the existence of more than 5,000 rural communities and 1,000 indigenous communities, the law would need to define specific criteria for consultations. Some suggested criteria could be problematic. For example, indigenous people are those with cultural patterns and lifestyles different from other populations who recognize themselves as indigenous communities. Some strict interpretations may exclude most Amazonian peasant communities or peoples whose relationship with other cultures is more fluid. Self-definition as native communities may also be problematic in the sense that it allows any community, whether native or peasant, to become the subject of consultations. A balance between inclusion of most groups, with affordable and practical requirements, for consultations will make the implementation of this Law more effective at guaranteeing the right of prior consultations to indigenous communities.

The second concern relates to the extent of powers granted to the subject of consultation. According to the Law, subjects have no right to veto, and any final decision is in the hands of the State. The Law should thus stipulate mechanisms for solving controversies and minimizing the possibility of violent outcomes when no consensus is reached between indigenous peoples, the state and companies. This will require capacities that the Peruvian public sector needs to strengthen, or the consultation processes will overpass the state capacities. For example, shortly after approving the Law, the state would have to organize consultations for at least 68 major projects in mining, electricity and hydrocarbons.

The Law of consultations and the regulation in preparation have already set an important standard for the new government in their commitment to promote social inclusion. The challenge now lies in negotiating an operative regulatory framework and preparing the public sector for the consultations. These are not going to be easy, and some of them may overpass the state capacities to solve the conflicts. Empowering indigenous communities was previously seen as an impediment to private investment, but this Law has the potential to change this perception.