Peru – Indigenous People

1.3. Stages of the elaboration process

First stage: call for stakeholders

It was developed from January to August 2019. It was characterized by the identification and rappro- chement of stakeholders from the State, companies, civil society, indigenous peoples, trade unions, international organizations, and international cooperation agencies. In this way, all sectors involved in the issue of business and human rights were brought together. In collaboration with them, the methodological proposal that would guide the NAP was developed and approved. This stage invol- ved the training of stakeholders on issues such as the Guiding Principles and other international standards, good business practices, and the rights of vulnerable groups. – page 23

It was considered a priority to incorporate the voice of rights holders and groups impacted or potentially negatively affected by corporate activities and, in general, of civil society organizations, indigenous peoples, and trade unions. – page 26

1.4. Stakeholders that participated in the process

The NAP preparation process involved 132 stakeholders from the State, companies, civil society, indigenous peoples, trade unions, international organizations, and international cooperation agen- 27 cies, all of which formed part of the Multi-Stakeholder Roundtable. – page 29

CHAPTER II: THE BUSINESS AND HUMAN RIGHTS SITUATION IN PERU

One of the most studied issues refers to the tense relationship between some business activities and the individual and collective rights of indigenous peoples. In addition to the above, there is a lack of evidence that shows the commitment of companies to the particular protection of the rights of this group, as well as due diligence mechanisms that take into account their particularities. (…)Guiding Principle 18 establishes that companies should “identify and assess the actual or potential negative consequences on human rights in which they may be involved either through their own activities or as a result of their business relationships” with the sectors concerned, which includes indigenous or native peoples, as well as human rights defenders. – page 36

CHAPTER III: DIAGNOSIS AND BASELINE: ACTION AREAS

3.1. General conclusions of the diagnosis and baseline

On the other hand, sectors such as civil society, trade unions, and indigenous peoples have also made contributions to the issue of business and human rights. While most of these are evidenced in the activities to incorporate the Guiding Principles and the RBC into the national political agenda, they have also brought up general international standards applicable so that the rest of the stakeholders consider them for the adoption of measures. – page 40

One of the fundamental objectives of this public policy is to have strengthened business, trade union, indigenous, and civil society institutions that coordinate with the State on an equal footing, as has been demonstrated throughout the NAP preparation stage. The achievement of this objective will allow this public management instrument to be viable and legitimate, and above all, that its imple- mentation efficiently serves the public purpose of building a country with sustainable development at the service of improving the quality of life of all people, especially the most vulnerable. – page 41

Child labor

There are organizations of working children and adolescents that have a critical appraisal of the work, due to the precarious working conditions. However, the international standard establishes the need to raise the minimum age of working children and adolescents, as well as to monitor that those who are of the minimum working age do not perform hazardous work. It is also important to mention that the measures to be adopted require a special focus on the areas of informality (where this problem is specific to), as well as in rural areas and particularly in relation to indigenous or native peoples. – page 44

Indigenous peoples and prior consultation

The State has a considerable national and international regulatory framework, including the Constitution, Convention No. 169 on indigenous and tribal peoples in independent countries, Law No. 29785 on the right to prior consultation with indigenous or native peoples, Law No. 29735 regulating the use, preservation, development, recovery, promotion, and dissemination of the native languages of Peru, among others, on the rights of indigenous or native peoples, in general, and the implementation of prior consultation, in particular. However, the indigenous or native peoples show state weakness and the need to achieve greater effectiveness of this regulatory framework. Among the main rights to be protected, the aforementioned peoples identified land titling, institutional strengthening for effective prior consultation, attention to structural conditions linked to economic, social, cultural, and environmental rights (food sovereignty, indigenous institutions, and indigenous juris- diction, among others). There is also evidence of the need to incorporate the intercultural approach in an increasingly effective way in public management, constituting a process of adaptation of the different entities, at the regulatory, administrative, and civil service levels of the State, to attend in a pertinent manner to the cultural and social needs of the different ethnic-cultural groups of the country in the measures linked to business activities.

With respect to other matters related to indigenous or native peoples, business associations have made progress with respect to corporate due diligence on human rights, with a clear intercultural approach, such as mechanisms for complaints and social claims in accordance with the Guiding Principles, which provide for reporting on the rules of due diligence and respect for human rights to external stakeholders and disseminate it among their contractors. However, public policy does not provide sufficient information on compliance.

With respect to mechanisms for redressing the rights of indigenous peoples, judicial remedies are the most commonly used, although they are slow and ineffective. There are also administrative avenues used, but it is noted that they are not designed to address the integrity of the damages caused, especially those resulting from informal activities and the criminal environment. Although strategic litigation by indigenous peoples and civil society has been a more efficient form of access to redress, this mechanism has been limited. – page 48/49

Environmental Impact Assessment (EIA)

The State has assumed a set of international environmental obligations related to the EIA, which has resulted in internal regulations to strengthen public policy to protect the environment and related rights in the context of investment projects. Within the framework of the National Environmental Impact Assessment System, the competent public entities have made progress both in the production of common general guidelines and by type of project for the preparation of EIAs, as well as in the mechanisms to ensure an adequate quality of information for the socio-environmental baselines and the content of the EIAs. The Executive Branch has the challenge of articulating its various governing bodies in order to have ever greater legitimacy and trust on the part of indigenous peoples and other groups with respect to the fulfillment of its role of promoting, supervising, monitoring, and defending the human rights related to this function. In this task, it is essential to count on the active and adequate participation of indigenous peoples, other groups, and citizens in general. – page 49

Large-scale agriculture

The agro-export sector represents one of the country’s main economic activities, with palm oil, cacao, asparagus, sugar, and quinoa agroindustries standing out. In this regard, there is a considerable national and international regulatory framework regarding labor and environmental issues and the rights of indigenous peoples in the context of these activities, which could be strengthened in accordance with various international regulations (…)Regarding reparation mechanisms, domestic legislation provides for administrative and criminal sanctions for labor infractions and environmental crimes, respectively, but it is necessary to adopt public policy measures to overcome legal, procedural, and social barriers in their application, mainly for indigenous peoples, workers, and unions. – page 50

Hydrocarbons

State and business commitment to develop it by guaranteeing energy security and the rights of the indigenous or native peoples living in the areas of influence of its projects. In addition to the inter- national framework, the State has national regulations for the protection of the rights of indigenous peoples in isolation and initial contact, as well as legislative advances in practices such as participatory environmental monitoring. – page 51

Table 8: NAP strategic guidelines and objectives, and alignment with the axes of the Peru Vision 2050

Strategic guideline No. 1: Promotion and dissemination of a culture of respect for human rights in the business environment in accordance with the framework of international standards of the guiding principles and other international instruments.

Objective 2: Organized civil society (members of civil society organizations, trade unions, and indigenous peoples) are aware of and promote the implementation of the guiding principles and other related international instruments in their activities.

8. Create and implement a permanent training program based on international standards on GP-RBC, from the Justice and Human Rights sector, with special emphasis on the specific needs of organized civil society, indigenous peoples, Afro-Peruvian people, trade unions, special protection groups, communities, and peasant patrols, and citizens in general: In order to guarantee a permanent state training and awareness-raising effort for the general public, organized civil society, the business sector, indigenous peoples, Afro-Peruvian people, trade unions, and groups in special protection situations, the MINJUSDH shall create and implement a training program on GP-RBC that addresses, in coordination with the institutions representing these sectors and other competent state entities, their particular needs: Training plan on GP-RBC for indigenous peoples and Afro-Peruvian people, with special emphasis on women (Action Indicator). – page 60

9. Guarantee the rights, especially the rights to equality and non- discrimination, of specially protected groups (LGBTI, the elderly, people with disabilities, women, migrants, Afro- Peruvians, indigenous peoples) in consumer relations: Special protection groups (LGBTI, elderly people, people with disabilities, women, migrants, Afro-Peruvians) require the
State to adopt measures that guarantee their right to fair and equitable treatment in consumer relations and not to be discriminated against on the basis of origin, age, sex, sexual orientation, etc., in the products and services offered. – page 62

15. To create a coordination space made up of Executive Branch entities for the intersectoral coordination of the implementation, follow-up, monitoring, evaluation, and updating of the NAP. Likewise, continue with the articulation of the State, companies, unions, indigenous peoples, and organized civil society stakeholders, as well as international organizations
and international cooperation, for the implementation, follow-up, monitoring, evaluation, and updating of the NAP, through a coordination space: A space made up of representatives of State, companies, trade unions, indigenous peoples, and organized civil society stakeholders, as well as international organizations and international cooperation agencies. At the time of the approval of the NAP, a similar space already exists and was created for the process of elaboration of the NAP through Vice-Ministerial Resolution No. 01-2019-JUS. Thus, in order to give it continuity, said space -which has the participation of 132 institutions-, will continue to operate, being able to incorporate more stakeholders during the implementation stage. Likewise, in order to guarantee a closer multi- stakeholder accompaniment during the implementation stage, a space with a smaller number of members, appointed by each of the stakeholder groups, will be created within the framework of this space. 3.- A working and coordination space with indigenous organizations in order to contribute to the strengthening of
the institutional framework of such organizations for the follow-up, monitoring, and evaluation of the implementation of the NAP, as well as to follow up that the competent entities responsible for the implementation of actions related to indigenous or native peoples determine, according to the provisions of Article 9 of Law No. 29785, whether the action of the NAP under its responsibility must be subject to prior consultation, as a prior condition for its implementation: A coordination space made up of representatives of State stakeholders, companies, trade unions, indigenous peoples, and
civil society organizations, as well as international agencies and international cooperation, formed and implemented (Action Indicator). – page 66

55.

Action: Promote the rights and non- discrimination of the Afro-Peruvian people and the Andean and Amazonian indigenous peoples, and protect in cases of racism.

Background: To ensure close coordination between the Culture and Justice and Human Rights sectors in order to promote, together with regional and local governments, concrete and effective actions to promote, respect, and guarantee the human rights of Afro- Peruvian people, indigenous or native peoples, and timely defense interventions in cases of racism and racial discrimination. Likewise, the participation of the national representative organizations of these peoples.

Indicator: Strategy for the promotion of the rights of Afro-Peruvian people and Andean and Amazonian indigenous or native peoples, and protection in cases of racism (Action Indicator). – page 92

Objective No. 2: Technical assistance to companies for the observance of human rights in their business activities

71.

Action: Produce, in coordination with the business sector, organized civil society, the competent state sector, indigenous peoples, and trade unions, specific guidelines for the business sector on the implementation of due diligence mechanisms for human rights defenders.

Background: In order to reflect the principles of the RBC and adapt them to specific business sectors, the MINJUSDH will produce a specific guide to implement due diligence mechanisms for the protection of human rights defenders. These documents will be elaborated with the stakeholders linked to the type of activity.

Indicator: Due diligence guide on human rights defenders prepared and publicly presented. – page 108

87.

Action: To progressively create and implement a mechanism for follow- up, monitoring, and voluntary reporting  of the corporate due diligence mechanisms implemented by trade unions and companies in the formal sector, with the participation of the business sector, civil society organizations, indigenous peoples, trade unions, and the competent state sector.

Background/Indicator: In order to follow up and monitor the implementation of due diligence mechanisms by the business sector, MINJUSDH will progressively create and implement a state mechanism to receive voluntary reports from the business sector reflecting progress in this task. This follow-up and monitoring mechanism will be formulated in coordination with the business sector, with the participation of the state, trade unions, indigenous or native peoples, and civil society sectors; furthermore, the reports will be received voluntarily, at the times and with the contents contemplated in its respective regulations. – page 119

Strategic guideline No. 5: Design and strengthening of mechanisms to ensure that those affected by human rights violations have access to judicial, administrative, legislative, or other means of redress.

Objective 3: Create and strengthen mechanisms at the operational level by companies to redress human rights violations in the corporate sphere.

96.

Action: Create and implement a follow-up and monitoring mechanism for corporate due diligence related to reparations, which  are implemented by trade unions and companies in the formal sector, with the participation of the business sector, civil society organizations, indigenous peoples, Andean and Amazonian peoples, trade unions and the relevant state sector: Businesses should diligently manage complaints and/or claims received from people with disabilities and senior citizens who consider themselves affected by the adverse impacts of business activities, ensuring due process of their complaints and implementing sanctions and redress mechanisms, as appropriate. This action, with emphasis on reparation mechanisms, is implemented within the framework of Action 87.

97.

Action: Produce, in coordination with the business sector, organized civil society, the competent state sector, indigenous or native peoples, Andean and Amazonian peoples, and trade unions, specific guidelines for the business sector for the implementation of due diligence mechanisms that provide comprehensive reparation.

Background: In order to reflect the principles of PR-CER, and adapted to specific business sectors, MINJUSDH will produce specific guides for the groups of species and issues prioritized in the diagnosis and baseline and others to be prioritized, in order to implement due diligence mechanisms.