|Samuel B Abad Yupanqui|
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to this rule, Peru had another law (Supreme Decree O23-2011-EM) covering only energy mining activities, which was repealed by Law 29785.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
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