As established in ILO Convention 169, Law No. 29763, the Forest and Wildlife Law (which will come into force when it has implementing regulation), and Law No. 29785, the Law on the Right to Prior Consultation of the Indigenous or Native Peoples, set out norms to regulate free, prior and informed consent, and the procedures to follow to ensure that the indigenous peoples are consulted.
The Law on the Right to Prior Consultation stipulates that it will allow “agreement or consent to be reached between the State and the indigenous or native peoples regarding the legislative or administrative measure which affects them directly, by means of an cross-cultural dialogue which guarantees their inclusion in the State decision-making processes and the adoption of measures which respect their collective rights.” Its regulation also involved a participation and consultation process, although the indigenous movement became fragmented, with one sector in favour and the other opposed to the result reached.
This is why it is necessary to strengthen the participation processes for regulation of the new Forest and Wildlife Law, in accordance with ILO Convention 169 and the Declaration of Human Rights, in order to reach an agreement or informed consent, as indicated in paragraph 3 of its Article II, and as stipulated in the Guide to Methodology for a Participative and Decentralised Process for Strengthening of the Forest Sector.
Nevertheless, the case of the Law on Prior Consultation, as some analysts have pointed out, could be “just another example of much noise but little impact, given that an illegitimate regulation process was followed by a lack of transparency in the other processes accompanying its implementation... In addition, there are basic questions such as the denaturalisation of the law itself, when it is stated that the consultation will take place before the contract is signed, after the bidding; in practical terms, this means that consultation will be used as a mere act of procedure, contradicting all the national and international regulations which attempt to give coherence to our body of legislation.” (1)
On this point, regulations must be respected and complied with, in the same way as international law and a number of rulings by the Constitutional Court provide backing for the collective rights of indigenous populations. One such ruling concerns the case of the Tres Islas Native Community in Madre de Dios, in which the Court confirmed the right to land ownership and respect for the autonomy of communities against illegal mining, thus making it the first national jurisdictional body to legislate in favour of indigenous self-determination (2).
(1) Méndez, Luis Hallazi (2012) "Prior Consultation in Plot 1AB and International Law" La Primera. Available at http://www.diariolaprimeraperu.com/online/columnistas-y-colaboradores/la-consulta-previa-en-el-lote-1ab-y-el-derecho-internacional_119897.html
(2) Inter-Ethnic Association for Development of the Peruvian Jungle (2012) "The Constitutional Court, in a historic decision, ruled in favour of the indigenous Tres Islas community " Published in News. Available at http://www.aidesep.org.pe/tribunal-constitucional-en-decision-historica-sentencio-a-favor-de-la-comunidad-indigena-tres-islas/
|Title||a. Article 8.1, 8.2, 9.1 of the ILO Convention No. 169, with regard to customary laws and traditional methods.
b. Article II Preliminary Title of Law No. 29763 (2011) - Forest and Wildlife Law (which will come into force when there is a regulation to implement it)
c. Law No. 29785 (2011) - Law on the Right to Prior Consultation of Indigenous or Native Peoples recognised in ILO Convention 169.
d. Guide to Methodology. Participative and Decentralised Process for strengthening of the Forest Sector, May 2012.
|Organisation||a. International Labour Organization
b. Executive Power and Congress of the Republic – through the Agricultural Commission
c. Congress of the Republic, Constitution and Regulation Commission
d. General Directorate for Forests and Wildlife