The contentious relationship between Indigenous communities, mining companies and the state came to a head last week in Peru. Mines and Energy Minister Jorge Merino persuaded Peruvian President Ollanta Humala to exclude Quechua-speaking communities from a law that gives Indigenous groups the right to be consulted about major mining and infrastructure projects that would directly affect them.
At issue is the country’s consulta previa (prior consultation) law—based on ILO Convention 169—which requires that Indigenous and native communities be consulted prior to the establishment of any policy and development processes that would directly affect them. President Humala formally signed ILO 169 into national law in 2011 in a symbolic ceremony in the town of Bagua—the location of the fatal 2009 clash between law enforcement and native communities in the Amazon that killed 33 people and cast a shadow on then-President Alan García.
Yet just one and a half years after ILO 169 became Peruvian law, it appears the state is rolling back what was once a win for the Indigenous communities. The cabinet battle being led by Merino prompted Deputy Culture Minister Iván Lanegra to resign from his post on Friday. Lanegra, who was responsible for overseeing the implementation of consulta previa and improving relations with Indigenous communities, announced his resignation via Twitter.The Ministry of Culture is responsible for creating the list of Indigenous communities that would have the right to consulta previa. Yet this list has never been published—likely due either to its potential controversial impact or because it is not yet complete. However, the news coming out of Peru this week proved that the government has decided to define Indigenous communities narrowly, leaving out the Quechua-speaking communities that were once thought to be covered by the law. At stake is about $50 billion in mining investments in the Peruvian highlands—where some of Peru’s more controversial mining projects are taking place and where communities that may end up not being covered by the law are currently living.
Elsewhere across the region, consulta previa continues to be a controversial topic, pitting mining companies against local Indigenous communities. Guatemala has been a battleground for Indigenous rights and prior consultation, and now faces deadly protests over a proposed silver mine and its likely contamination of local water supplies. Two people have died, six demonstrators have been shot and wounded, and 23 police officers have been kidnapped by protestors. Guatemalan President Otto Pérez Molina recently declared a state of emergency across four southeastern towns.
Last year, Americas Quarterly documented a conflict in Colombia’s La Guajira province, where a mining company wanted to divert a river 16 miles to access the coal underneath—affecting the nearby Wayúu Indigenous community, for whom the river is its lifeblood. After years of consultation, the project has been postponed. Formally, the cause of postponement was due to unfavorable international coal prices—yet it is likely that the negative environmental and social impact of diverting a river in the Wayúu community played a role.
Under ILO 169, communities are not granted any veto power over an extraction project, but they are entitled to a broad, consultative process encompassing both social and environmental impact.
Last week’s developments again bring many pending questions to the forefront: Which communities will be entitled to this consultative process, as in the case of Peru? Will communities have a voice and begin protests, as in the case of Guatemala? Or, will communities convince companies to reconsider extraction projects in the face of social and environmental disapproval, as in Colombia?
Consulta previa will continue to be an unpredictable process, as many countries are still navigating how best to apply these laws in the context of their own development. With growing demand for natural resources and unprecedented development in extractive industries, these questions will likely persist across the region.
