Indigenous World 2019: Peru
According to the 2007 Census, Peru’s population includes more than 4 million indigenous persons, of whom 83.11% are Quechua, 10.92% Aymara, 1.67% Ashaninka and 4.31% belong to other Amazonian indigenous peoples. The Database of Indigenous or Original Peoples notes the existence in the country of 55 indigenous peoples at present, who speak 47 indigenous languages.
It should also be noted that 21% of Peru’s territory consists of mining concessions, which are superimposed upon 47.8% of the territory of peasant communities. Similarly, 75% of the Peruvian Amazon is covered by oil and gas concessions. The superposition of rights over communal territories, the enormous pressure of the extractive industries, the absence of territorial zoning, and the lack of effective implementation of prior consultation exacerbate territorial and socio-environmental conflicts in Peru, even though the country has signed and ratified ILO Convention 169 on Indigenous and Tribal Peoples and, in 2007, voted in favour of the United Nations Declaration on the Rights of the Indigenous Peoples (UNDRIP).
Defending human rights is a high-risk activity in Peru, as borne out by the figures, which indicate that 87 defenders have been killed in the country since 2011. Forty-eight of these died at the hands of gunmen, and only two of these cases have ever been brought to justice. A further 155 cases of arbitrary use of police force have also been recorded since 2005, without any convictions for these actions to date.1
To date, more than 800 cases of protest have been criminalised, meaning that people are prosecuted purely for exercising their right to peacefully protest. Most cases of people putting their lives at risk to defend their rights take place in the context of the extractive industry and illegal economies – such as illegal mining, human trafficking, drugs trafficking – or in the context of local criminal groups and organised crime. Environmental rights defenders, LGBTI defenders, sexual and reproductive rights defenders, women’s and gender rights defenders are all also particularly vulnerable.
Criminalisation of protest
The 2018 Alternative Report on “Meeting the Peruvian state’s obligations under ILO C169” describes the backdrop against which this criminalisation of protest is taking place in Peru:
The Peruvian state has made a series of regulatory amendments to the criminal and criminal procedural law that are in violation of fundamental rights such as the right to personal freedom, personal integrity and freedom of expression.2
The report’s regulatory analysis notes that, under the pretext of “fighting organised crime,” laws have been approved that can be used as tools for criminalising those exercising their right to social protest, affecting the rights of indigenous peoples, their communities, leaders and organisations nationally:
During the government of Pedro Pablo Kuczynski, laws were drawn up and issued aiming, firstly, at creating new kinds of offences. These were associated with the exercise of protest and a toughening of the penalties for this. They were aimed, secondly, at ensuring the security force’s intervention in socio-environmental conflicts and the protection of extractive companies. The following legislation was issued to criminalise the right to social protest: legislative decrees 1244, 1245, 1267, 1298, 1307 and Law 30558.3
Agreements have been reached between the National Police and the extractive companies to protect their corporate interests and such agreements are harmful to the region’s population, enabling different ways of criminalising socio-environmental protest to be gradually introduced.
According to information provided by the Ministry of the Interior (Mininter) in response to various public information requests made to this institution,4 145 extraordinary police service agreements were signed between Peru’s National Police and extractive companies (from the mining and hydrocarbons sector) between 1995 and 2018. The departments with the greatest number of such agreements are Arequipa (21), Cusco (17), Cajamarca (13), Áncash (9) and Apurímac (7).
The backdrop of social conflict and socio-environmental protest throughout 2018 has shone a spotlight on the criminalisation of human rights defenders (HRDs), who have been prosecuted up and down the country, via the criminal and administrative courts, primarily through links to their representation work in their communities of origin.
Peru has not escaped the crisis of democracy that is shaking Latin America. There has been a clear weakening of the democratic system, and the weaker a country’s democracy the greater the vulnerability of HRDs because they are the people who denounce bad practices, expose people and situations involving abuses of power and defend the basic rights of individuals. The debate on the right to defend rights is new in the country.
Both civil society and the state authorities have a limited understanding of the legal framework of this right, even though several international bodies have recommended the implementation of mechanisms to protect HRDs. In 2013, the Human Rights Committee recommended that the Peruvian state effectively investigate complaints of attacks committed against HRDs and journalists. In 2016, the Peruvian state undertook to enact a Security Protocol although, to date, no progress has been made in this regard. In 2018, the Committee on the Elimination of Racial Discrimination (CERD) indicated its concern at the growing signs of violence against HRDs and recommended that the state take action to protect them.5 In February 2018, the National Hu- man Rights Plan 2018-20216 was thus enacted, committing the relevant authorities to: develop a mechanism to protect HRDs; approve the Protocol for Intersectoral Action (2018); and create the Registry of Attacks during 2019 and the Comprehensive Protection Policy by 2021. In January 2019, the National Human Rights Coordinating Body launched a campaign entitled #I’m Championing Human Rights Defenders7 with the aim of recognising the work of individuals and organisations who defend the rights of all, encouraging a change in society’s somewhat preconceived notions of defenders and pressuring the Peruvian state to meet its commitment to enact the Protection Protocol for HRDs.
A growing problem for Peru and the whole of the Amazon in recent decades has been the increased deforestation being caused by a proliferation of illegal mining and logging mafias. Over the last decade, Madre de Dios has been the most affected region, with Amazonian forest disappearing strongly linked to the construction of the Inter-Oceanic Highway.8 This project is being implemented by the construction company Odebrecht, which was recently involved in a major corporate corruption scandal. During 2018, the National Forest Conservation for Climate Change Mitigation Programme published a report on the losses which revealed that, during 2017, more than 23,000 hectares of forest were lost,9 the highest figure since the turn of the century. Although information is not yet available for 2018, the prospects for improvement are not that great, despite the hopes for greater protection of the most badly affected forests that emerged following the elections last year.
The figures for the Peruvian Amazon are disheartening. Most NGOs dedicated to forest observation and monitoring calculate that annual deforestation currently stands at some 150,000 hectares. Faced with this reality, indigenous communities have taken a leading role in the struggle against deforestation over the last 12 months. In Madre de Dios, the Boca Pariamanu Native Community has been implementing different daily practices to counter deforestation in the area. One of these is their support for the project “Land Security for Indigenous Peoples,”10 which is being implemented through the Peruvian Environmental Rights Society (Sociedad Peruana de Derechos Ambiental/SPDA). The aim is to create brigades of native community members who will be responsible for establishing boundary markers as points by which to georeference their territories in the face of the advancing mafias. The immediate success of, and participation in, this initiative has led to the project being extended to Loreto, the largest area of Peruvian forest and an area that is under threat from oil exploration and the expansion of tourism.
In addition, last August, eight indigenous communities from Loreto and Madre de Dios received 364 titles recognising the intellectual property of their collective ancestral knowledge. Several indigenous peoples of the Peruvian forest have thus been able to protect the use of their biological resources for nutritional, medicinal, textile and spiritual purposes.
One of the most discussed issues of the year was a draft bill of law through the Congress of the Republic which seeks to implement the socalled “Hidrovía Amazónica,”11 a waterway transport system that involves rechannelling rivers and undertaking a series of river excavations. Several indigenous bodies protested at this project, including the Regional Organisation of Indigenous Peoples of the East (Organización Regional de los Pueblos Indígenas del Oriente/ORPIO). Through a number of statements made by its President, Jorge Pérez Rubio, this organisation has been calling for a consultation process prior to any implementation of the waterway, along with the production of an adequate environmental impact study. With most forest indigenous peoples rejecting it and the Cohidro public-private consortium supporting it, 2019 began with this project – which will affect more than 2,600 kms of the Huallaga, Marañón, Ucayali and Amazonas rivers – still at a standstill.
Titling and the Law on Territorial Organisation
In recent years, titling has been an issue of relevance to all the different regions of Peru. Both in the Amazon and in the Andes, the lack of a Law on Territorial Organisation has generated a series of conflicts over the use of land in rural and community spaces. This problem has unfortunately not gained the expected political support of central government. This became clear in the middle of 2018 when, in a message to the nation during the national holidays, President Martín Vizcarra focused on an aggressive anti-corruption policy and failed to mention proposals related to titling and territorial organisation.12 As a result, an opportunity was lost to include territorial organisation in the public debate during the second half of 2018.
An in-depth analysis of the problems caused by the lack of a Law on Territorial Organisation was offered in the middle of the year by the lawyer Juan Carlos Ruiz Molleda, who clarified that there is no private property within the peasant communities as it is all communally-owned, with the sale of land therefore only being possible with the approval of two-thirds of the members of that community.13 Nevertheless, under market criteria of private property and inheritance, a number of problems have emerged in recent years with families trying to sell peasant lands that are in communal use. To this must be added the fact that the crime of land grabbing has become more prevalent in recent years for these communities. The Amazon region has, in this regard, been among the most active in its demand for land titles. In July, in the context of an indefinite strike on the part of 51 communities in Ucayali, the Interethnic Association for the Development of the Peruvian Forests (Asociación Interétnica de Desarrollo de la Selva Peruana/AIDESEP) described the failure to title communal properties as an act of corruption, a historic debt which on more than one occasion had been recognised by the Peruvian state itself. The claims became even stronger when the renowned Ashaninka leader, Ruth Buendía, denounced the government’s institutional “favouritism” towards the forest concessions, to the detriment of land titling.
As for the Andean zone, 2019 began with uncertainty over some of the most controversial mining projects of the last few years. These include the Tía María project, located in Arequipa and which, since 2013, has been at a standstill due to a dispute over the environmental impact on the rural area. While a number of local voices are beginning to call for a referendum in Arequipa to establish the social viability of Tía María, Southern Copper Corporation has been conducting an outreach campaign with the local population, in parallel with the trial that is underway for the acts of violence that took place in the Tambo Valley in 2014. For the moment, a number of statements made by the new regional governor of Arequipa, Élmer Cáceres Llica, form the latest milestone in Tía María’s long history. He has announced that the mining project will be not be moving forward “without the people being consulted,” although he has not specified whether this should be through a referendum or a regular process of prior consultation.
Environmental and indigenous legislation
In terms of environmental legislation, 2018 was not one of the best years for Peru. Despite certain laws being enacted, such as restrictions on the use of plastic and the Framework Law on Climate Change, there is a draft bill of law in the pipeline that seriously threatens the biodiversity of the Andes and the Amazon. This is the Organic Law on Hydrocarbons,14 which is being promoted by the Government of Peru and which has been the subject of some debate in Parliament. This law proposes a series of amendments that seek to speed up implementation of extraction projects in Peru, with the most alarming new element being the possibility of using fracking as a method of fossil fuel exploration. Resistance to this legislation, from various different groups in Congress, came swiftly and even reached down to the indigenous delegations attending COP24 in Katowice (Poland) in December where AIDESEP15 denounced the fact that the government was seeking to make a laughing stock of environmental legislation by bringing in a law that would enable fracking, a method that destabilises the very foundations of the territories by drilling through underground rock to find sources of fuel. If it were to put this method into practice, Peru would be going against the global trend which, in recent years, has been to ban fracking due to the damage it causes to the soil and to water sources. In fact, the use of this mechanism has already had negative impacts on Peruvian territory as this practice was responsible for the serious pollution of the Marañón, Tigre, Corrientes and Amazonas river basins around Plot 192.
Some progress was noted in environmental law when the former Minister of Culture, Patricia Balbuena, and the current Minister of the Environment, Fabiola Muñoz, announced that they would be holding a prior consultation, with indigenous peoples’ involvement, on the implementing regulations for the Framework Law on Climate Change.16 This announcement came after a series of indigenous organisations had made requests to the Peruvian state, through the Vice-Ministry of Interculturality, and following a letter sent by AIDESEP to the Prime Minister, César Villanueva. The indigenous organisations thus hope to rectify several omissions and violations of indigenous law noted in the enactment of the Framework Law on Climate Change, an initiative of the Ministry of the Environment, which forms part of the commitments taken up by the Peruvian state when it signed the Paris Agreement and its goals. It is worth noting in relation to this process that the National Organisation of Indigenous Andean and Amazonian Women (Organización Nacional de Mujeres Indígenas Andinas y Amazónicas/ONAMIAP) has made a series of proposals,17 with a gender focus, on issues such as climate change mitigation and adaptation, as well as food sovereignty.
Notes and references
- Data from the National Human Rights Coordinating Body (CNDDHH). Press release on the #I’m Championing Human Rights Defenders
- 2018 Alternative report: Meeting the Peruvian state’s obligations under ILO Chapter VI: Criminalisation of Protest and Defence of Human Rights. p. 40.
- Ibid p. 41.
- Requests made by and information provided to EarthRights International Peru, Institute for Legal Defence and the National Human Rights Coordinating Body
- Ataques que sufren las defensoras y defensores de derechos humanos en el Perú. Material produced by the National Human Rights Coordinating Body, Spanish Cooperation, Studies for the Defence of Women’s Rights (Estudios para la Defensa de los Derechos de la Mujer), Flora Tristán, Entre Pueblos, European Union and the Association for Research and Specialisation in IberoAmerican Issues (Asociación de Investigación y Especialización sobre Temas Iberoamericanos).
- National Human Rights Plan 2018-202 Ministry of Justice – “Peruvian System for Legal Information” See the PDF at: http://bit.ly/2Imk6nr
- #I’m Championing Human Rights Defenders: Campaign of the National Human Rights Coordinating Body (CNDH) (2019). See the campaign at: http://bit.ly/2Ipg261
- See Odebrecht, “Concesión IIRSA Sur entre Odebrecht, Graña y Montero y demás consorciados.” at http://bit.ly/2IoJQzP
- See Servindi, “Deforestación en Madre de Dios fue la más alta en los últimos 17 años.” at http://bit.ly/2In7fl6
- See Servindi, “Comunidad Boca Pariamanu y su lucha contra la deforestación | Servindi Servicios de Comunicación Intercultural” at http://bit.ly/2InGUn2
- See Servindi, ”Hidrovía: Estudio de impacto no debe continuar sin consulta previa” at http://bit.ly/2IpZLh9
- See Servindi, “Titulación: el gran mensaje ausente en el discurso presidencial” at http://bit.ly/2Im4EIb
- See Servindi, “¿Cómo defender el territorio de las comunidades campesinas del despojo? http://bit.ly/2Io8Qam
- See El Peruano, “Impacto del sector hidrocarburos” at http://bit.ly/2IoIIw5
- See Servindi, “Denuncian en la COP24 la nefasta Ley del Fracking en Perú | Servindi Servicios de Comunicación Intercultural” at http://bit.ly/2IoJ6L3
- See Servindi, “¡Triunfo indígena! Reglamento de Ley Climática irá a consulta ” at http://bit.ly/2Imn5MF
- See Servindi, “Mujeres aportan al reglamento de la Ley Marco de Cambio Climático.” at http://bit.ly/2Ipb0GA