Recently, the Inter-American Commission on Human Rights held its 153rd regular session, during which it hosted 53 thematic hearings on a wide range of regional human rights issues. On Friday, October 31, a delegation of indigenous leaders and human rights defenders from Peru came face-to-face with Peruvian state representatives to discuss the rights of indigenous peoples in Peru to property and legal recognition. Beautifully dressed in traditional garb, the petitioners delivered a compelling account of the Peruvian state’s chronic failure to safeguard indigenous peoples against extractive industries’ encroachment on and degradation of ancestral lands.

Raquel Yrigoyen Fajardo, a Peruvian lawyer at the Instituto Internacional de Derecho y Sociedad (IIDS), began the petitioners’ presentation by providing a history of the Peruvian state’s constantly evolving conceptualization of indigeneity and the legal implications that flow from it. According to Yrigoyen, since the days of conquest and colonization and for some time thereafter, Peru uniformly classified all native populations as indigenous (or, during colonial times, as “savages” and “infidels”), regardless of their geographic origins. During the first half of the 20th century, Peru took a major step forward in the protection of human rights when it officially recognized indigenous peoples’ legal personhood and collective property rights. The 1933 Constitution went as far as to provide that the state shall allocate land, even via expropriation, to indigenous communities whose territories were too small to meet the needs of their populations.

This movement towards a progressive indigenous rights regime, however, was short-lived. In the 1960s and ‘70s, national-level agrarian reform resulted in the Peruvian state reclassifying Andean indigenous groups as “campesinos.” In turn, “indigenous” was redefined to apply solely to lowland, Amazon-based populations, which the state refers to as “nativos.” While “campesinos” usually refers to farmers, the term can carry a negative connotation, often used to describe opportunistic migrants who move into the new development project sites in search of employment. Thus, by rebranding traditional Andean communities as campesinos, the Peruvian state has chosen to ignore these groups’ historical claims to ancestral lands, which are based on several centuries of use, occupation, and management. This has also allowed the Peruvian government to argue that the right to prior consultation, which is a right that adheres to indigenous people, does not apply to campesino communities.

The first to speak from the indigenous delegation was Péas Péas Ayui, current president of the Federación de la Nacionalidad Achuar del Perú (FENAP), the largest Achuar organization in Peru. The Achuar are an indigenous people who traditionally live in the Corrientes, Pastaza, and Morona river basins of the Peruvian and Ecuadorian Amazons. Although Peru formally recognizes them as indigenous, as Ayui explained, the Achuar nevertheless face constant threats to their lands, lives, and livelihoods. According to Ayui, the Peruvian state allocated 64% of Achuar territory to oil and gas concessions without first consulting the Achuar and obtaining their free, prior, and informed consent (FPIC). As a result of the destructive exploration activities of companies like Petroperu and Geopark, the environment and water quality in large stretches of Achuar land has deteriorated.

The landscape is similarly suffering in the ancestral lands of Comunidad Nativa Tres Islas, an indigenous community comprised of Ese´eja and Shipibo groups. According to the Tres Islas’s leader, the community is recognized by the state and in 1994 received official titling to its ancestral territory, which is located in the Tambopata region of Madre de Dios. Despite this fact, the Peruvian government approved 146 mining concessions within the Tres Islas’s land (roughly 60% of the territory) without first consulting the community or securing its FPIC. As in the case of the Achuar, the inhabitants of Tres Islas are facing numerous environmental and public health calamities, including mercury poisoning traceable to gold mining activities.

The final speaker from the indigenous delegation was Rosa Sara Huamán Rinsa, the leader of Pueblo San Juan de Kañaris, a Quechua-speaking highland people considered campesino by the Peruvian state. According to Huamán Risna, like the Achuar and Tres Islas, Pueblo Kañaris is facing encroachment on its traditional territory by extractive industry. Mining concessions encompass approximately 90% of Pueblo Kañaris’s ancestral lands, including residential hubs, farmland, and churches. However, unlike the other two communities, Pueblo Kañaris’s status as campesino precludes the community from invoking its rights to consultation and FPIC in challenging the concessions. In September 2012, Pueblo Kañaris held a community-wide assembly, during which 90% of the participants voted to reject a mining mega-project recently approved by the state. When the community reported the results of the assembly to the government, Peruvian Prime Minister Cesar Villanueva simply replied that Pueblo Kañaris was not entitled to consultations because it was a campesino community.

Regrettably, the Peruvian state did not address its arbitrary classification system in its responses to the petitioners. However, the hearing made clear that the Peruvian government took the position, contrary to recognized regional human rights norms to which the state of Peru is subject, that there is never a right to free prior and informed consent before a large scale project goes forward on indigenous lands. This is in direct violation of the Inter-American system’s holding in Awas Tingni that states cannot turn to their domestic laws to validate violations of indigenous peoples’ rights, and in violation of the clear holding in the Saramaka case that “large scale” projects in indigenous territory cannot move forward unless FPIC of the communities has been obtained. At the hearing, the Peruvian government made clear that it was flouting these clear norms. According to the government, the right to consultation is the right of recognized indigenous peoples to meaningful dialogue with the state, with the aim of coming to an agreement that complies with international standards.

Unfortunately, such loose interpretations have led to the proliferation of sham consultations throughout the Americas. As we have discussed elsewhere with regard to the TIPNIS project in Bolivia, there too the state often treats indigenous consultations as a mere formality, another check off the administrative checklist. This state practice arguably undermines the Inter-American system’s decisions in cases like Awas Tingni and Dann v. United States, which support the idea that consultations should aim to secure affected peoples’ prior and informed consent, which these peoples in turn may freely choose to give or withhold. While the Inter-American Court’s decision in Sarayaku v. Ecuador set a stricter standard than preceding case law on what constitutes a good faith consultation, the Inter-American system needs to do more to clarify what constitutes adequate consent.

A final point: the right to consultation originally evolved from international law’s recognition of indigenous peoples’ right to self-determination, specifically with regard to their cultural use of traditional lands. Consequently, as it currently exists in the Inter-American human rights system and Peruvian law, the right to FPIC is inextricably attached to the right to property. While this link has provided a critical basis for protection in numerous indigenous land rights cases, it becomes problematic when the community invoking consultation rights (such as Pueblo Kañaris) lacks an officially recognized claim to the land in dispute. It also becomes problematic given states’ narrow definition of indigenous property, which excludes subsoil resources and thereby legitimizes extractive concessions. The Inter-American system therefore needs to recognize an independent basis for FPIC that protects the rights of indigenous peoples to consultation and self-determination even in the absence of property claims.