Global support for Peruvian Indigenous leader following ISDS case against indigenous land rights

August 9, 2018: The Canadian mining company Bear Creek recently won an ISDS case against Peru and was awarded US$37 million in compensation and costs. The government had refused a mining license because the company had not sought full and informed consent from indigenous people, resulting in mass protests against the mine in 2011. AFTINET has been using this case as an example of how ISDS can undermine indigenous rights.

The protests were led by local indigenous leader Walter Aduviri, who was sentenced to 7 years in jail and a heavy fine. Human rights groups are supporting his appeal against the sentence to the Peruvian Supreme Court.

Following a request from the Peruvian human rights and environmental organization DHUMA, together with international organizations such as The Democracy Centre and Mining Watch Canada, 50 organisations, including AFTINET, have signed a letter asking the Peruvian Supreme Court to overturn the jail sentence and fine.

The letter also makes more general criticisms of ISDS and calls on mining and other international companies to respect indigenous rights.

During the 2011 conflict, communities from the district of Puno took action against the Santa Ana mine, a project owned by Bear Creek, after the company failed to obtain their informed consent to the mine as required by Peruvian and international laws on indigenous land rights. The people demanded the cancellation of the project due to the risks of water contamination including the water of Lake Titicaca which straddles Peru and Bolivia. They also called out the lack of consultation of communities, the illegality of the project as well as the lack of transparency and bad faith in which Bear Creek acted in relation to the communities.

The protest was at first fiercely repressed by the Peruvian State but, ultimately, the mine project was cancelled. However, the Puno District Prosecutor initiated criminal charges against the protest spokespersons, and Walter Aduviri – the main spokesperson – was charged with crimes for which the penalties were 7 years in prison and fined 2 million Soles (approximately US$600,000, the equivalent of 2,500 minimum wages in Peru).

In December 2017, the Puno Court ratified the sentence against Aduviri and ordered his detention, and Aduviri went into hiding. His lawyers appealed the sentence and Aduviri’s case is currently being considered by the Supreme Court of Justice of Peru.

The global letter says that if the Supreme Court ratifies the sentence against Aduviri, a dangerous judicial precedent will be set that would undermine the defence of human rights and of territory in Peru. The legal detail is that Aduviri is accused of being an ‘Indirect Perpetrator’ behind the alleged unrest - in other words, of having ordered others to commit crimes on his behalf. Such a ruling would place others at risk of being considered as ‘Indirect Perpetrators’ regardless of the lack of any material evidence and where the only ‘crime’ is that of being spokesperson for an organisation or community.

The letter urges the judges to recognise that Aduviri did nothing more than demand that the rights of the Aymaran people be respected, and so to definitively overturn the sentence. It asks them to reject the use of the concept of ‘Indirect Perpetrator’ against communities simply objecting to a mining project, which was lawful. Finally, it demands that the mining companies, like Bear Creek mainly concentrated in the south of Peru, respect the decisions of the communities about mining projects.

The letter argues that Walter Aduviri’s case is not isolated. It demonstrates the pro-mining agenda in Peru and across the continent, where multinationals enter territories with the sole intention of converting common goods into financialised resources, leaving communities and ecosystems destroyed in their wake. Where there is resistance, the state systematically represses, imprisons and in some cases creates the conditions for the assassination of defenders. These multinational corporations also turn to international tribunals to use ISDS to sue countries for compensation when they feel that their profits have been put at risk in any way, as Bear Creek did in this case.

Global civil society must continue to press for an internationally binding legal framework so that transnational corporations can be made accountable for their actions around the world, bringing to an end their current impunity.