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| Samuel B Abad Yupanqui
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On April 4 2012, the regulation of Law 29785 became effective. It
carries the right to prior consultation with indigenous peoples
recognised by Convention 169 of the International Labour Organization
(ILO), and is intended to ensure the right to consultation when an
administrative or legislative measure, for example, a mining lease or
the installation of gas pipelines, may directly affect collective
rights.
Convention 169, in force since February 1995, had no legal
development. It was only when Law 29785 became effective in December
2011 that its scope was developed. However, some clarification was
required. Previously to this rule, Peru had another law (Supreme Decree
O23-2011-EM) covering only energy mining activities, which was repealed
by Law 29785.
The new regulation thus fills a gap. It defines as an administrative
action subject to consultation any official act authorising the
commencement of the activity or project, or authorising the public
administration to the signing of contracts for that purpose. It
specifies the essential characteristics, the stages of the consultation
process, its time limit (120 days), its financing, and the results of
the process. While the purpose of the consultation is to reach an
agreement, in case this does not happen the final decision rests with
the state. In that case, the decision must be motivated by, and involves
an assessment of, the views, suggestions and recommendations of
indigenous peoples as well as the analysis of the direct consequences of
the measure on their collective rights.
There are still issues that could be improved; however, this is an
important step toward transparent fundamental rules in situations when
an investment may entail the adoption (by the state) of measures that
directly will affect the rights of indigenous peoples.
In short, the regulation opens a new scenario that requires full
implementation of this newest regulations in order that consultation can
become an effective instrument to facilitate intercultural dialogue,
promote economic development, and contribute to providing a peaceful
resolution of social conflicts.
Samuel B Abad Yupanqui