Peru’s Constitutional Court’s Racist Disregard for the Right to Consultation and the ILO Convention No. 169

SOURCE: http://aidesep.org.pe/node/13825, originally posted on March 4, translated to English by Awasqa.

Declaration by the Asociación Interétnica de Desarrollo de la Selva Peruana (AIDESEP)

The Peruvian Constitutional Court’s recent ruling on Case 03066-2019-PA/TC disregards its own jurisprudence and appears to be a mere opinion, with no more than two lines worth of legal or factual basis. In light of this, as the Interethnic Association for the Development of the Peruvian Rainforest (AIDESEP) and on behalf of our nine regional organizations―CORPIAA, FENAMAD, ORPIAN-P, ORAU, ORPIO, CODEPISAM, CORPI-SL, ARPI-SC, and COMARU―we declare:

1. Our complete rejection of the aforementioned ruling by the Constitutional Court, which claims that “the right to prior consultation is not recognized in the Constitution, either explicitly or implicitly, and therefore it is not possible to claim constitutional protection as it is not a fundamental right.” As well as that “it derives from Convention 169, which does not grant it the status of a fundamental right and, therefore, cannot be inferred as a right of this dimension and even less that it has constitutional status.”
2. With this, the Constitutional Court intends to deprive indigenous peoples of a fundamental tool that allows access to justice and the ability to defend our rights (such as the constitutional protection process), not only with regard to the right to consultation but also other rights covered under the ILO Convention 169, such as the right to territory, consent, self-determination, intercultural education, and health care, etc. 
3. Furthermore, 200 years after the founding of the Republic of Peru, it is outrageous that the highest interpreter of the Constitution persists in declarations that only highlight racism against indigenous peoples by disregarding a right as fundamental as the right to free, prior, and informed consultation and consent. This right is a basic means of communication needed to finally reverse centuries of colonialism that persist until this day. It will ensure that development models will not be continuously imposed on us, as if we were incapable of deciding, with autonomy and self-determination, our own priorities for development.
4. Such racism is already evident in laws that differentiate between indigenous territories and their populations―located mainly in areas classified as rural by the state―and urban areas, where Law 27015 prohibits the granting of metallic and non-metallic mining concessions. This situation is only aggravated by an attempt to disregard the right to prior consultation, both by the Peruvian Constitutional Court and by any other state entity. Such racism is unacceptable in any state governed by the rule of law.  
5. The memory of our fellow victims of the Baguazo incident, who fought to defend the right to consultation and territory, shall not be tarnished by this ruling of the Constitutional Court.

In light of the above:

• We demand an immediate rectification by the Constitutional Court, to clarify that the right to consultation and other rights covered by the ILO Convention 169 have constitutional status and are fundamental rights that all state officials are obliged to guarantee.
• We demand that the President of Peru Pedro Castillo and the Deputy Minister of Interculturality immediately speak out against the Constitutional Court’s recent ruling and that, at executive level, the necessary measures are adopted to revise and amend all regulations contrary to ILO Convention 169, in order to guarantee the right to consultation and free, prior, and informed consent of any act that may affect indigenous peoples.