On August 23, 2012, ERI partnered with the Center for International Environmental Law (CIEL) in submitting an amicus (friend of the court) brief in a case before the Constitutional Tribunal of the Republic of Peru, an independent judicial body tasked with reviewing constitutional challenges to state action.

The case, brought by the lawyers at the Legal Defense Institute (IDL), is about the complete failure of the Peruvian State to perform the prior consultation as required by the ILO Convention 169 and by the American Convention on Human Rights, before authorizing the mining concessions in the indigenous community of Arboleda and other titled communities in the district of Tiquillaca, Peru.

The communities had argued that the failure of the state to consult them before granting the mining concession threatened to disrupt their entire way of life and put in jeopardy their rights to collective property, territory, political participation, food, a healthy environment, water, health, culture and traditional way of life.  Additionally and fundamentally, they argued that the failure of the state to carry out a consultation in accordance with the international law standards—in particular, the failure to perform a consultation before granting the concession—represents a violation of international human rights law by the Peruvian state.

Our brief supported these arguments by detailing the international law obligations with respect to prior consultation, and demonstrating the binding nature of those obligations within Peru. The brief concludes that the concession agreements, having been reached without any consultation, violate international human rights law, and thus must be considered null under Peruvian law.  The violation, we argued, can only be remedied through the review of the concessions in conformity with the requirements of international law. The brief thus called on the Constitutional Tribunal to adopt the measures necessary to protect the violated rights of the indigenous peoples affected by the granting mining concessions.

This is the first case challenging a mining concession for lack of prior consultation to reach the Constitutional Tribunal of Peru, and it has huge implications—the situation faced by the Arboleda community, rather than an exception to the rule, is the norm experienced by countless other communities throughout the country. The change in concession granting policies is what civil society, in particular national indigenous and farming organizations have been demanding for years.  This case thus has the potential to shift state practice with respect to the process of granting of concessions for all types of extractive projects from mining and oil to timber and fishing concessions and thus could readjust the balance of power which for years has favored multinationals in Peru.

Just last week, a Brazilian court stepped to the plate and ordered the suspension of the construction of the Belo Monte Dam also for lack of consultation with the affected communities. That court had the guts to stand with indigenous communities in the defense of international law in spite of a political and economic regime dead-set on pushing through the mega-project. Here in Peru, with communities all over the country organizing in protest against government policies favoring extractive projects, now is the time for the Constitutional Tribunal to step to the plate as well.