On June 25 2010, the Constitutional Tribunal (CT) published on its website its judgment on case 06316-2008-PA/TC that declares inadmissible the Constitutional Claim (Amparo) files by the Interethnic Association for for the Peruvian Jungle Development (AIDESEP), which stated that the companies holding the License Agreements for the Exploration and Production of Hydrocarbons y Blocks 67 and 39 of the Loreto Region, violated the rights to live, health, welfare, cultural integrity, ethnic identity, to a balanced environment, property, and ancient possession as well the territorial rights of the Indigenous People in Isolation and requested the suspension of all operations in these territories.
In its judgment, the CT rejects allegations about the supposed threat to the rights of Peoples in Voluntary Isolation and the evidence of their existence stating that, “although the plaintiff has submitted several studies, documents and testimonies, the defendant companies as well as the Ministry of Energy and Mines, have questioned such support, submitting an extensive list of studies and other documents that would prove the lack of presence of Non Contacted Communities or People in Voluntary Isolation in the areas relate to the exploration and exploitation projects referred to in the lawsuit”. The CT concludes that “the Constitutional Claim (Amparo) is not the proper way for this lawsuit without since the review of evidence issues, as controversial as those exposed in this case, have no place in this case as stated in article 9th of the Constitutional Procedure Code”.
With regard to the alleged threat to the right to a balanced and adequate environment for the development of life, the CT says that, “since the plaintiff have not submitted documentation showing the existence of such threat, while the defendants have provided documentation showing their fulfillment of the requirements of various environmental procedures, as well as the protocols thereto, it assumes that all legal measures have been taken in order to not engage in illegitimate actions”.
In connection with the Right to Consultation recognized by the ILO 169 Treaty, existing and binding when the License Agreements before mentioned were executed, the CT states that, “while some actions are taking place without the participation or the consultation to the communities and their organizations that would be inconsistent with the Constitution, since the adoption of said Contracts a series of acts in good faith on the contractors side had occurred, based on the assurance and confidence that could reasonably be convey by the State competent authorities”.
Moreover, the CT points out that “its decision must weight its effects in order not to generate greater sacrifices than the rights it intend to protect, especially if contractors are operating under the framework of the Law-Contracts (Contratos-Ley) executed with the Peruvian Government and guaranteed by article 62 º of the Constitution”.
Hence, in this case the CT considers that the “Right to Consultation should be implemented gradually by all the involved parties and under the supervision of the competent entities, ordering to put on place a plan of shared commitments between the private companies, whose actions will not be paralyzed, and the communities and their leaders, who cannot resign their rights which need to be restored in the shortest possible time, opening the dialogue for the purpose of building an space for harmony and mutual trust”.
Finally, the CT states that “the Ministry of Energy and Mines shall call all the involved companies for implementing within the framework of existing legislation and of its decision No.022-2009-PI/TC, adequate and effective mechanisms of consultation that will enable communities to express their concerns, and to be duly informed on the progress of the exploration of resources, as well as the impact that these processes generate in their life”.
For more information about this subject, contact the attorneys in our Energy-Environmental Area
Alberto Varillas Cueto avarillas@garciasayan.com.pe
José Luis Agreda jagreda@garciasayan.com.pe
María Soledad Gastañeta msgastaneta@garciasayan.com.pe
