SUPREME DECREE N º 023-2011-EM
THE PRESIDENT OF THE REPUBLIC
WHEREAS
That on June 27, 1989, at its seventy-sixth meeting, the International Labour Organization - ILO adopted the International Convention 169 ILO, known as the Convention on Indigenous and Tribal Peoples in Independent Countries;
That the Convention No. 169 was approved by Congress through Legislative Resolution No. 26253, dated December 2, 1993, and ratified by Peru, on February 2, 1994;
That, in Judgement No. 05427-2009-PC/TC Constitutional Court, dated June 30, 2010, was ordered the Ministry of Energy and Mines, within the framework of its powers, issue special regulations to develop the right to consultation of indigenous peoples, for mining and energy, in accordance with the principles and rules set out in paragraphs 1, 2, Article 6, paragraph 2 of Article 15 of Convention No. 169 of the ILO;
That paragraph 1 of Article 6 of Convention No. 169 states that governments must consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels in decision-making in elective institutions and administrative and other bodies responsible for policies and programs which concern them, and establish means for the full development of institutions and initiatives of indigenous peoples and in appropriate cases provide the resources necessary for that purpose;
That paragraph 2 of Article 6 of That Convention states that the consultations carried out under this Convention shall be undertaken in good faith and in a manner appropriate to circumstances, in order to reach an agreement or consent on the proposed measures
That paragraph 2 of Article 15 of Convention No. 169 states that the State has ownership of subsoil resources or rights to other resources pertaining to lands, before undertaking or permitting any exploration or exploitation of the resources on their lands, governments shall establish or maintain procedures to consult the peoples concerned, to determine whether interests would be prejudiced, and to what extent;
That, in that sense, it is necessary to regulate consultation process laid down in Convention No. 169 of the ILO, for administrative and policy measures for the mining and energy sector;
Pursuant to the Constitutional Court Judgement No. 05427-2009-PC/TC and Resolution No. 15, dated November 16, 2010, issued by the Special Court in Enforcement of Supranational;
DECREES:
Article 1 .- Adoption of the Rules of Procedure for the application of the law of Indigenous Peoples Consultation for Energy Mining Activities.
To approve the Rules of Procedure for the application Law of Indigenous Peoples Consultation for Mining Activities in Energy, which consists of three (03) titles, two (02) chapters, three (03) Sub Chapters Twenty-seven (27) Article s, four (04) Supplementary Provisions and two (02) Transitory Provisions.
Repeal Article 2 .-
Deróguese or let yourself be ineffective measures that are contrary to the provisions of this Regulation.
Article 3 .- Endorsement
This Supreme Decree shall be countersigned by the Minister of Energy and Mines.
Given at Government House in Lima, eleventh day of May, two thousand eleven.
Alan
Constitutional President of the Republic
Pedro Sánchez Gamarra
Minister of Energy and Mines
RULES OF PROCEDURE FOR THE APPLICATION OF REFERENCE FOR INDIGENOUS PEOPLES ENERGY MINING ACTIVITIES
TITLE I GENERAL PROVISIONS
Article 1 .- Scope of regulation.
1.1 This regulation aims to regulate the procedure for applying the law to the Consultation of indigenous energy for mining activities in accordance with the principles and rules set out in paragraphs 1 and 2 of Article 6, paragraph 2 of Article 15 of Convention No. 169 of the ILO.
1.2 The Ministry of Energy and Mines, PERUPETRO SA, INGEMMET, IPEN, OSINERGMIN and regional governments through the Regional Directorates of Energy and Mines or their equivalents in the field of powers transferred by the Energy Sector and Mines under the decentralization process, are entities of Energy and Mining Sector responsible for conducting and supervising the processes of consultation.
Article 2 .- Purpose of the Consultation.
The consultation aims to reach an agreement with indigenous peoples on mining and energy sector measures outlined in this regulation may affect them directly. To this end, the State must determine whether the interests of indigenous peoples would be affected directly and to what extent.
Article 3 .- Measures subject of the Consultation.
administrative measures and regulations are the Energy and Mines Advisory matter in the field of energy mining activities as follows: a.
Regulatory action.
That in which certain issues involving general legislation, in some points required to establish specific references to indigenous peoples, in which case, consult these specific points only if such change directly the legal situation of indigenous peoples.
b. Administrative Measure.
administrative act contains statements intended to produce legal effects on the interests, obligations and / or rights of the citizens and are capable of directly affecting indigenous peoples within a specific situation.
The administrative measures to be submitted to Consultation established in each sub-sector in this Regulation.
Article 4 .- Principles.
a. Good Faith
Both entities responsible for implementing the consultation process as representatives and representative institutions of indigenous peoples should be consulted to facilitate dialogue to develop the consultation process. Also, both sides should avoid attitudes or behaviors that seek to evasion of the agreement, interfere or omit to cooperate with the development or implementation of agreements on the subject of consultation as to avoid turn the lack of diligence in compliance with agreed. Practices should be excluded subtle, implicit or express that violate the consultation process, both by institutions that carry out the consultation process as representatives and representative institutions of indigenous peoples, or any other particular involved in the consultation process. The use of violence goes against this principle.
b. Flexibility.
The consultation process should be conducted in a manner appropriate to the circumstances, taking into account the existing diversity of indigenous peoples, the diversity of customs and its possible effect on their interests.
c. Transparency.
Everyone involved in the consultation process will participate responsibly providing the necessary information in a timely, continuous and accessible, using the language of the indigenous peoples in simple language, clear and culturally appropriate, and the media as needed so as to ensure real dialogue process. This principle applies to relationships between indigenous peoples, through their representative institutions and organizations responsible for implementing the consultation process.
d. Opportunity.
The consultation process should be carried out prior to making a decision regarding the administrative action or regulation. E.
Multiculturalism. Every relationship
developed between indigenous peoples, their representatives and representative institutions and public administration authorities must take place within the framework of the interaction between different cultures based on equality, cultural diversity, favoring respect, dialogue and consultation.
f. Representativeness.
indigenous peoples may be affected directly by implementing a certain extent, participate in the consultation process, through their elected representatives in accordance with its internal procedures.
Article 5 .- Recipients or recipients of the consultation process.
5.1 In the case of regulatory measures, the process of consultation was indigenous organizations representing national, duly accredited to the Ministry of Culture.
5.2 In the case of administrative action, the process of consultation shall be the representative institutions of each indigenous people likely to be affected directly elected according to custom, duly accredited by the Ministry of Culture.
Article 6 .- Responsible for the implementation of the consultation process.
In the case of administrative measures likely to affect indigenous peoples, the Ministry of Energy and Mines, PERUPETRO INGEMMET, IPEN, OSINERGMIN or regional governments, through the Regional Directorates of Energy and Mines or their equivalents in the field of powers transferred by the Energy and Mining Sector in the framework of the decentralization, as appropriate, will be responsible for carrying out the procedure for consultation. In the case of policy measures which may directly affect indigenous peoples, the various bureaus of the Ministry of Energy and Mines, as applicable, will be responsible for carrying out the procedure for consultation.
Article 7 .- Evaluation of measures administrative or policy.
entities responsible for carrying out the process of consultation, should assess whether administrative or policy measures to be adopted are likely to directly affect indigenous peoples, describing whether or not a process of consultation on measures that planned to be made.
is considered that the administrative action or legislation will directly affect indigenous peoples when produced, among others, changes their identity, culture or rights over land they inhabit.
TITLE II OF THE CONSULTATION PROCESS
Article 8 .- Planning Consultation process.
planning consultation process is applicable to the measures referred to in Article 3 of this Regulation. The entity that directs the proceedings, assess whether the measure adopted is likely to affect indigenous peoples directly. Conclude that it is, that entity will be responsible for implementing the consultation process, for which it must fulfill the following:
Report indigenous peoples may be affected directly. In the case of regulatory measures should be addressed to indigenous organizations representing national character. In the case of administrative measures should be addressed to the institutions representative of each indigenous people likely to be affected directly, duly elected according to custom. In either case, the representation must be accredited by the Ministry of Culture.
Plan Consultation process, considering the language and customs of indigenous peoples to be consulted, specifically defining the extent of the consultation and how this would directly affect the rights or interests of indigenous peoples.
Article 9 .- The consultation process itself.
The process applies to the measures referred to in Article 3 of this Regulation is:
a. The entity responsible, after the above completed in the previous article, it shall timely and accessible information in a transparent way, using culturally appropriate methods and procedures on the extent to representatives of indigenous peoples. These institutions have a period of twenty (20) days to evaluate the implications of the measure that directly affect indigenous peoples.
b. Completed the previous term, the entity responsible for the consultation process convened representatives of indigenous peoples to initiate the dialogue process as regards consultation, this process will have a term maximum duration of twenty (20) days.
c. As a result of the Act set up a dialogue which will be signed by the representative of the entity responsible for the consultation process and representatives of indigenous peoples and terminated the consultation process.
d. If no agreement is reached, the entity responsible for carrying out the consultation process will be terminated the first phase of dialogue. To this end, shall be recorded in the minutes of the matters on which there is agreement and disagreement. This Act shall be signed by the representatives of the entity responsible for the process and the representatives of representative institutions of indigenous peoples. E.
The entity responsible for implementing the consultation process shall, within a period not exceeding six (06) working days from the date of completion of the first phase, a second phase of dialogue, for which they apply the same procedures and deadlines for the first phase outlined above. Similarly, the agreements that contain arrives at a second Act, which will be signed by the representative of the entity responsible for the consultation process and representatives of the institutions representing indigenous peoples, and terminated the process.
f. If despite the efforts of the parties is not reached agreement, the entity proposing the measure, may issue or withdraw from it. If delivery of the measure, the measure must be encouraged to include in its preamble or in the preamble, the analysis of the outcome of the consultation process within the framework of Convention No. 169 of the ILO and the Political Constitution of Peru, taking , as appropriate, requests and comments expressed by the representatives of the institutions representing the indigenous peoples during the consultation process.
Article 10 .- Decision.
The entity responsible for implementing the Consultation process, depending on the level of harm that could result in the measure will evaluate its decision to adopt, adapt or abandon it, considering its importance to the national interest and sustainable development. It must also base its decision on an act motivated to include in its preamble or in the preamble, the analysis of the outcome of the consultation process, the contents of the Minutes of Consultation in the framework of Convention No. 169 of the ILO and Political Constitution of Peru.
Entity responsible for implementing the consultation process must inform the representatives of indigenous peoples to the decision.
Article 11 .- Suspension of the consultation process.
If during the consultation process are not available for the performance guarantees of dialogue between the parties nor has the proper security, the entity responsible for implementing the consultation can suspend the execution of acts contained in Article 9, and terminated the first phase of dialogue. To this end, the person responsible shall issue a reasoned report on the facts or circumstances giving rise to the suspension of the process.
The suspension of the process referred to above will not relieve the obligation the entity responsible for implementing the second phase of the consultation process.
Article 12 .- Failure to carry out the consultation process.
12.1 In case there is no willingness on the part of representatives of indigenous peoples and / or institutions representing indigenous peoples in order to carry out the consultation process, the entity responsible for executing this process, then a period of ten (10) business days suspended the process, these representatives reconvene and institutions to resume the dialogue process on the administrative action or legislation for consultation.
12.2 In the event persists refusal of representatives of indigenous peoples and / or institutions representing indigenous peoples for the achievement of the dialogue, the entity proposing the administrative action or legislation will close the consultation process. 12.3
Then, the entity proposing the legislation or administrative action or assess the appropriateness of adopting such a measure, can adopt or abandon it.
12.4 In case the entity proposing the administrative action or regulation adopted or approved the measure, it shall inform the representatives of indigenous peoples or institutions representing indigenous peoples as or administrative rules adopted.
Article 13 .- The participation of facilitators, interpreters and advisers in the process of consultation.
The entity responsible for implementing the consultation can call trained facilitators and interpreters, in agreement with representatives of indigenous peoples or institutions representing indigenous peoples.
representative institutions of indigenous peoples may have advisors during the consultation process. In any case, these advisers will have powers of representation.
TITLE III SECTORAL IMPLEMENTATION OF THE CONSULTATION PROCESS
CHAPTER 1
MINING SECTOR
Article 14 .- Administrative Measures concerning Consultation on the Sub-Sector Minero.
Administrative measures regarding consultation are: the granting of mining concessions, benefit concessions, general labor and mining transport, which may directly affect indigenous peoples.
The consultation process was carried out in accordance with the rules and procedures set out in Parts I and II of this Regulation.
Article 15 .- The granting of mining concessions.
The natural person or legal entity, as provided by Article 118 of Supreme Decree No. 014-92-MEM, TUO of the General Mining Law, order the grant of one or more concessions in the area of \u200b\u200bwhich there one or more indigenous peoples, shall submit its request for additional request to the Regional Government INGEMMET or for the "Project Background" whose contents will be approved by Ministerial Resolution of Energy and Mining Sector.
Exceptionally, the INGEMMET or the relevant Regional Government may determine the accumulation of the consultation process regarding several mining petitions of one or more petitioners, provided that the indigenous people likely to be affected is the same.
Article 16 .- In the "Basics of Project" and the granting of the Mining Concession.
16.1 The petitioner shall have up to (01) year from the date of the request asked for the presentation of the "Basic Information Project." Upon receipt of this document, the Regional Government INGEMMET or after checking for compliance with the requirements that must contain the basic information of the project, initiate the consultation process en aplicación de lo establecido en los Títulos I y II del presente Reglamento.
16.2 Una vez concluido el proceso de Consulta, el INGEMMET o el Gobierno Regional correspondiente, emitirá el acto administrativo otorgando o denegando la(s) concesión(es) solicitada(s). Dicho acto deberá ser motivado, incluyendo en su parte considerativa o en su exposición de motivos, el análisis del resultado del proceso de Consulta y del contenido del Acta de Consulta, en el marco del Convenio Nº 169 de la OIT y de la Constitución Política del Perú.
16.3 En caso el peticionario no cumpliera con presentar la “Información básica del Proyecto” en el plazo establecido in section 16.1 of this Article, the INGEMMET or the relevant Regional Government, declared abandoned the procedure and the free area as reported respondent.
Article 17 .- In awarding benefits, Labor and Transportation General Mining.
will be carried out a consultation process prior to awarding concessions for profit, general labor and mining transport if: a.
Existed in the area requesting any of the aforementioned awards one or more indigenous peoples and,
b. The location of any of the aforementioned concessions were inside a mining concession that has not been approved after a process of consultation, and / or c.
The concessions referred to above are to be developed in areas that have not been the subject of prior consultation process.
Once the consultation process, the Directorate General of Mines issued the administrative act granting or refusing the grant requested. This act must be motivated to include in its preamble and in its preamble, the analysis of the outcome of the consultation process and content of the Minutes of Consultation in the framework of Convention No. 169 of the ILO and the Constitution of Peru . CHAPTER
2 ENERGY SECTOR
Subchapter 1: ELECTRICITY
Article 18 .- Administrative Measures concerning Consultation on the Electricity Subsector.
administrative measures are likely to directly affect indigenous peoples and, therefore, subject to consultation: the granting of temporary and permanent concessions of power generation and transmission as well as granting permission for thermoelectric power generation.
The consultation process was carried out in accordance with the rules and procedures set out in Parts I and II of this Regulation.
Article 19 .- Opportunity consultation process regarding the granting of concessions and authorizations Power.
19.1 If in the area of \u200b\u200ba power generation project, you will find one or more indigenous peoples, the natural person or legal entity must apply for a temporary grant of pre-grant so final. The granting of the concession period is subject to the process of consultation to be carried out by the Directorate General of Electricity.
If temporary concession had been the subject of consultation and include the same areas as the final grant, the grant the latter does not require consultation process.
19.2 If in the area of \u200b\u200ba power transmission project, you will find one or more indigenous peoples, the provision of electricity transmission concession is subject to the process of consultation to be carried out by the Directorate General of Electricity.
If the temporary grant of power transmission have been the subject of consultation and include the same areas as the final transmission concession, granting the latter does not require consultation process.
19.3 If in the area of \u200b\u200bthermal power generation project, you will find one or more indigenous peoples, the granting of authorization shall be subject to thermal generation process of consultation to be carried out by the Directorate General of Electricity.
19.4 In the case of power projects that the Ministry of Energy and Mines PROINVERSIÓN instruct the Directorate General of Electricity will make the process of consultation before the grant of power law for which will have the necessary technical information project for the consultation process. 19.5
Once the consultation process, the Ministry of Energy and Mines issued the administrative act granting granting or denying the request. This act must be motivated by taking into account the outcome of the consultation process.
SUBCHAPTER 2: GEOTERMIA
Article 20 .- Administrative Measures concerning Consultation for the granting of authorizations Geothermal.
administrative measures are subject to consultation, the granting of permission for geothermal exploration and geothermal grant, which may directly affect indigenous peoples.
The consultation process was carried out in accordance with the rules and procedures set out in Parts I and II of this Regulation.
Article 21 .- The process of consultation for Geothermal Exploration Permit.
If the area applied for geothermal exploration, we find one or more indigenous peoples, the granting of exploration approval is subject to the consultation process undertaken by the Directorate General of Electricity.
Article 22 .- The consultation process for the approval of geothermal.
22.1 is carried out the consultation process prior to awarding concessions for geothermal exploitation in the area if there is one or more people required Indians. 22.2
Once the consultation process, the Directorate General of Electricity shall issue the administrative act granting or refusing the grant requested. This act must be motivated by taking into account the outcome of the consultation process.
22.3 In case the area applied for had undergone a consultation process for geothermal exploration and include the same areas as geothermal granting the order for the latter does not require consultation process.
SUBCHAPTER 3: OIL
Article 23 .- Administrative Measures concerning Consultation in Subsector Hydrocarbons
are administrative measures concerning consultation process prior to the signing of the contracts referred to Article 10 of Supreme Decree N º 042-2005-EM Consolidated Amended Text of the Organic Hydrocarbons Law, the granting of concessions for transport and distribution of hydrocarbons through a pipeline network, and permits for the installation of processing plants and oil refining, which may directly affect indigenous peoples.
The consultation process was carried out in accordance with the rules and procedures set out in Parts I and II of this Regulation. Article
24 .- Opportunity Consultation process for the process leading to the signing of the contracts referred to Article 10 of Supreme Decree N º 042-2005-EM.
Prior to the signing of the Contract for Exploration and Exploitation or Exploitation applicable, as established by Supreme Decree N º 042-2005-EM Consolidated Amended Text of the Organic Law of Hydrocarbons, PERUPETRO, will perform Consultation process in accordance with those reported in Parts I and II of this Regulation, if the area subject of the contract to be signed directly affects one or more indigenous peoples.
The result of the process Consultation should be sent to the Ministry of Energy and Mines prior to the issuance of Presidential Decree authorizing the signing of the contract concerned.
Article 25 .- In the concessions for the transport and distribution of hydrocarbons through a pipeline network.
For purposes of the provisions of Article 76 and following the Supreme Decree N º 042-2005-EM Consolidated Amended Text of the Organic Hydrocarbons Law, the Directorate General of Hydrocarbons, prior to awarding concessions for the transportation and distribution oil through a pipeline network, will carry out the consultation process in accordance with those reported in Parts I and II Regulation, provided that the administrative measure is likely to directly affect indigenous peoples.
If the subject area of \u200b\u200bapplication for transport and distribution of hydrocarbons through a pipeline network, had been the subject of a consultation process prior to the application, the grant award will not require consultation process.
Article 26 .- In the Permissions for the installation of processing plants and Oil Refining.
For purposes of the provisions of Article 74 of Supreme Decree N º 042-2005-EM Consolidated Amended Text of the Organic Law of Hydrocarbons, the OSINERGMIN prior to the issuance of the Technical Report of Favorable for installation and processing plants of oil refining, should carry out the consultation process in accordance with those reported in Parts I and II of this Regulation, provided that is capable of directly affect indigenous peoples.
If the subject area authorization application for the installation of processing plants and oil refinery, had been the subject of a consultation process prior to the application, the latter does not require consultation process.
Article 27 .- Transport and Distribution Hydrocarbons through a pipeline network managers to PROINVERSIÓN.
In the case of transport projects and distribution of hydrocarbons through a pipeline network whose process of investment promotion commission the Ministry of Energy and Mines PROINVERSIÓN, the Directorate General of Hydrocarbons will make the process of consultation before the grant of the grant or authorization, for which will be the project's technical information necessary for the consultation process, whenever that might affect indigenous peoples directly.
If the area for the grant of transmission and distribution network hydrocarbon pipeline, had been the subject of a consultation process prior to the application, the grant award will not require consultation process.
SUPPLEMENTARY
First .- The General Office of Social Management of the Ministry of Energy and Mines may be called by the entity responsible for carrying out the consultation process as a technical advisory body in this process .
Second .- The Ministry of Energy and Mines may report the results of the consultation process to state agencies associated with energy mining activities.
Third .- If no procedural or vacuum is applied in addition to the rules of participation for each subsector.
Fourth .- The amendments and additional provisions of this Regulation shall be subject to the consultation process as set out in Parts I and II of this Regulation.
TRANSITIONAL
First .- administrative proceedings commenced before the effective date of this rule shall be governed by participation rules in force at that time.
For Second .- Ministerial Resolution setting out the measures relating to the provisions of this Regulation.
THE PRESIDENT OF THE REPUBLIC
WHEREAS
That on June 27, 1989, at its seventy-sixth meeting, the International Labour Organization - ILO adopted the International Convention 169 ILO, known as the Convention on Indigenous and Tribal Peoples in Independent Countries;
That the Convention No. 169 was approved by Congress through Legislative Resolution No. 26253, dated December 2, 1993, and ratified by Peru, on February 2, 1994;
That, in Judgement No. 05427-2009-PC/TC Constitutional Court, dated June 30, 2010, was ordered the Ministry of Energy and Mines, within the framework of its powers, issue special regulations to develop the right to consultation of indigenous peoples, for mining and energy, in accordance with the principles and rules set out in paragraphs 1, 2, Article 6, paragraph 2 of Article 15 of Convention No. 169 of the ILO;
That paragraph 1 of Article 6 of Convention No. 169 states that governments must consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels in decision-making in elective institutions and administrative and other bodies responsible for policies and programs which concern them, and establish means for the full development of institutions and initiatives of indigenous peoples and in appropriate cases provide the resources necessary for that purpose;
That paragraph 2 of Article 6 of That Convention states that the consultations carried out under this Convention shall be undertaken in good faith and in a manner appropriate to circumstances, in order to reach an agreement or consent on the proposed measures
That paragraph 2 of Article 15 of Convention No. 169 states that the State has ownership of subsoil resources or rights to other resources pertaining to lands, before undertaking or permitting any exploration or exploitation of the resources on their lands, governments shall establish or maintain procedures to consult the peoples concerned, to determine whether interests would be prejudiced, and to what extent;
That, in that sense, it is necessary to regulate consultation process laid down in Convention No. 169 of the ILO, for administrative and policy measures for the mining and energy sector;
Pursuant to the Constitutional Court Judgement No. 05427-2009-PC/TC and Resolution No. 15, dated November 16, 2010, issued by the Special Court in Enforcement of Supranational;
DECREES:
Article 1 .- Adoption of the Rules of Procedure for the application of the law of Indigenous Peoples Consultation for Energy Mining Activities.
To approve the Rules of Procedure for the application Law of Indigenous Peoples Consultation for Mining Activities in Energy, which consists of three (03) titles, two (02) chapters, three (03) Sub Chapters Twenty-seven (27) Article s, four (04) Supplementary Provisions and two (02) Transitory Provisions.
Repeal Article 2 .-
Deróguese or let yourself be ineffective measures that are contrary to the provisions of this Regulation.
Article 3 .- Endorsement
This Supreme Decree shall be countersigned by the Minister of Energy and Mines.
Given at Government House in Lima, eleventh day of May, two thousand eleven.
Alan
Constitutional President of the Republic
Pedro Sánchez Gamarra
Minister of Energy and Mines
RULES OF PROCEDURE FOR THE APPLICATION OF REFERENCE FOR INDIGENOUS PEOPLES ENERGY MINING ACTIVITIES
TITLE I GENERAL PROVISIONS
Article 1 .- Scope of regulation.
1.1 This regulation aims to regulate the procedure for applying the law to the Consultation of indigenous energy for mining activities in accordance with the principles and rules set out in paragraphs 1 and 2 of Article 6, paragraph 2 of Article 15 of Convention No. 169 of the ILO.
1.2 The Ministry of Energy and Mines, PERUPETRO SA, INGEMMET, IPEN, OSINERGMIN and regional governments through the Regional Directorates of Energy and Mines or their equivalents in the field of powers transferred by the Energy Sector and Mines under the decentralization process, are entities of Energy and Mining Sector responsible for conducting and supervising the processes of consultation.
Article 2 .- Purpose of the Consultation.
The consultation aims to reach an agreement with indigenous peoples on mining and energy sector measures outlined in this regulation may affect them directly. To this end, the State must determine whether the interests of indigenous peoples would be affected directly and to what extent.
Article 3 .- Measures subject of the Consultation.
administrative measures and regulations are the Energy and Mines Advisory matter in the field of energy mining activities as follows: a.
Regulatory action.
That in which certain issues involving general legislation, in some points required to establish specific references to indigenous peoples, in which case, consult these specific points only if such change directly the legal situation of indigenous peoples.
b. Administrative Measure.
administrative act contains statements intended to produce legal effects on the interests, obligations and / or rights of the citizens and are capable of directly affecting indigenous peoples within a specific situation.
The administrative measures to be submitted to Consultation established in each sub-sector in this Regulation.
Article 4 .- Principles.
a. Good Faith
Both entities responsible for implementing the consultation process as representatives and representative institutions of indigenous peoples should be consulted to facilitate dialogue to develop the consultation process. Also, both sides should avoid attitudes or behaviors that seek to evasion of the agreement, interfere or omit to cooperate with the development or implementation of agreements on the subject of consultation as to avoid turn the lack of diligence in compliance with agreed. Practices should be excluded subtle, implicit or express that violate the consultation process, both by institutions that carry out the consultation process as representatives and representative institutions of indigenous peoples, or any other particular involved in the consultation process. The use of violence goes against this principle.
b. Flexibility.
The consultation process should be conducted in a manner appropriate to the circumstances, taking into account the existing diversity of indigenous peoples, the diversity of customs and its possible effect on their interests.
c. Transparency.
Everyone involved in the consultation process will participate responsibly providing the necessary information in a timely, continuous and accessible, using the language of the indigenous peoples in simple language, clear and culturally appropriate, and the media as needed so as to ensure real dialogue process. This principle applies to relationships between indigenous peoples, through their representative institutions and organizations responsible for implementing the consultation process.
d. Opportunity.
The consultation process should be carried out prior to making a decision regarding the administrative action or regulation. E.
Multiculturalism. Every relationship
developed between indigenous peoples, their representatives and representative institutions and public administration authorities must take place within the framework of the interaction between different cultures based on equality, cultural diversity, favoring respect, dialogue and consultation.
f. Representativeness.
indigenous peoples may be affected directly by implementing a certain extent, participate in the consultation process, through their elected representatives in accordance with its internal procedures.
Article 5 .- Recipients or recipients of the consultation process.
5.1 In the case of regulatory measures, the process of consultation was indigenous organizations representing national, duly accredited to the Ministry of Culture.
5.2 In the case of administrative action, the process of consultation shall be the representative institutions of each indigenous people likely to be affected directly elected according to custom, duly accredited by the Ministry of Culture.
Article 6 .- Responsible for the implementation of the consultation process.
In the case of administrative measures likely to affect indigenous peoples, the Ministry of Energy and Mines, PERUPETRO INGEMMET, IPEN, OSINERGMIN or regional governments, through the Regional Directorates of Energy and Mines or their equivalents in the field of powers transferred by the Energy and Mining Sector in the framework of the decentralization, as appropriate, will be responsible for carrying out the procedure for consultation. In the case of policy measures which may directly affect indigenous peoples, the various bureaus of the Ministry of Energy and Mines, as applicable, will be responsible for carrying out the procedure for consultation.
Article 7 .- Evaluation of measures administrative or policy.
entities responsible for carrying out the process of consultation, should assess whether administrative or policy measures to be adopted are likely to directly affect indigenous peoples, describing whether or not a process of consultation on measures that planned to be made.
is considered that the administrative action or legislation will directly affect indigenous peoples when produced, among others, changes their identity, culture or rights over land they inhabit.
TITLE II OF THE CONSULTATION PROCESS
Article 8 .- Planning Consultation process.
planning consultation process is applicable to the measures referred to in Article 3 of this Regulation. The entity that directs the proceedings, assess whether the measure adopted is likely to affect indigenous peoples directly. Conclude that it is, that entity will be responsible for implementing the consultation process, for which it must fulfill the following:
Report indigenous peoples may be affected directly. In the case of regulatory measures should be addressed to indigenous organizations representing national character. In the case of administrative measures should be addressed to the institutions representative of each indigenous people likely to be affected directly, duly elected according to custom. In either case, the representation must be accredited by the Ministry of Culture.
Plan Consultation process, considering the language and customs of indigenous peoples to be consulted, specifically defining the extent of the consultation and how this would directly affect the rights or interests of indigenous peoples.
Article 9 .- The consultation process itself.
The process applies to the measures referred to in Article 3 of this Regulation is:
a. The entity responsible, after the above completed in the previous article, it shall timely and accessible information in a transparent way, using culturally appropriate methods and procedures on the extent to representatives of indigenous peoples. These institutions have a period of twenty (20) days to evaluate the implications of the measure that directly affect indigenous peoples.
b. Completed the previous term, the entity responsible for the consultation process convened representatives of indigenous peoples to initiate the dialogue process as regards consultation, this process will have a term maximum duration of twenty (20) days.
c. As a result of the Act set up a dialogue which will be signed by the representative of the entity responsible for the consultation process and representatives of indigenous peoples and terminated the consultation process.
d. If no agreement is reached, the entity responsible for carrying out the consultation process will be terminated the first phase of dialogue. To this end, shall be recorded in the minutes of the matters on which there is agreement and disagreement. This Act shall be signed by the representatives of the entity responsible for the process and the representatives of representative institutions of indigenous peoples. E.
The entity responsible for implementing the consultation process shall, within a period not exceeding six (06) working days from the date of completion of the first phase, a second phase of dialogue, for which they apply the same procedures and deadlines for the first phase outlined above. Similarly, the agreements that contain arrives at a second Act, which will be signed by the representative of the entity responsible for the consultation process and representatives of the institutions representing indigenous peoples, and terminated the process.
f. If despite the efforts of the parties is not reached agreement, the entity proposing the measure, may issue or withdraw from it. If delivery of the measure, the measure must be encouraged to include in its preamble or in the preamble, the analysis of the outcome of the consultation process within the framework of Convention No. 169 of the ILO and the Political Constitution of Peru, taking , as appropriate, requests and comments expressed by the representatives of the institutions representing the indigenous peoples during the consultation process.
Article 10 .- Decision.
The entity responsible for implementing the Consultation process, depending on the level of harm that could result in the measure will evaluate its decision to adopt, adapt or abandon it, considering its importance to the national interest and sustainable development. It must also base its decision on an act motivated to include in its preamble or in the preamble, the analysis of the outcome of the consultation process, the contents of the Minutes of Consultation in the framework of Convention No. 169 of the ILO and Political Constitution of Peru.
Entity responsible for implementing the consultation process must inform the representatives of indigenous peoples to the decision.
Article 11 .- Suspension of the consultation process.
If during the consultation process are not available for the performance guarantees of dialogue between the parties nor has the proper security, the entity responsible for implementing the consultation can suspend the execution of acts contained in Article 9, and terminated the first phase of dialogue. To this end, the person responsible shall issue a reasoned report on the facts or circumstances giving rise to the suspension of the process.
The suspension of the process referred to above will not relieve the obligation the entity responsible for implementing the second phase of the consultation process.
Article 12 .- Failure to carry out the consultation process.
12.1 In case there is no willingness on the part of representatives of indigenous peoples and / or institutions representing indigenous peoples in order to carry out the consultation process, the entity responsible for executing this process, then a period of ten (10) business days suspended the process, these representatives reconvene and institutions to resume the dialogue process on the administrative action or legislation for consultation.
12.2 In the event persists refusal of representatives of indigenous peoples and / or institutions representing indigenous peoples for the achievement of the dialogue, the entity proposing the administrative action or legislation will close the consultation process. 12.3
Then, the entity proposing the legislation or administrative action or assess the appropriateness of adopting such a measure, can adopt or abandon it.
12.4 In case the entity proposing the administrative action or regulation adopted or approved the measure, it shall inform the representatives of indigenous peoples or institutions representing indigenous peoples as or administrative rules adopted.
Article 13 .- The participation of facilitators, interpreters and advisers in the process of consultation.
The entity responsible for implementing the consultation can call trained facilitators and interpreters, in agreement with representatives of indigenous peoples or institutions representing indigenous peoples.
representative institutions of indigenous peoples may have advisors during the consultation process. In any case, these advisers will have powers of representation.
TITLE III SECTORAL IMPLEMENTATION OF THE CONSULTATION PROCESS
CHAPTER 1
MINING SECTOR
Article 14 .- Administrative Measures concerning Consultation on the Sub-Sector Minero.
Administrative measures regarding consultation are: the granting of mining concessions, benefit concessions, general labor and mining transport, which may directly affect indigenous peoples.
The consultation process was carried out in accordance with the rules and procedures set out in Parts I and II of this Regulation.
Article 15 .- The granting of mining concessions.
The natural person or legal entity, as provided by Article 118 of Supreme Decree No. 014-92-MEM, TUO of the General Mining Law, order the grant of one or more concessions in the area of \u200b\u200bwhich there one or more indigenous peoples, shall submit its request for additional request to the Regional Government INGEMMET or for the "Project Background" whose contents will be approved by Ministerial Resolution of Energy and Mining Sector.
Exceptionally, the INGEMMET or the relevant Regional Government may determine the accumulation of the consultation process regarding several mining petitions of one or more petitioners, provided that the indigenous people likely to be affected is the same.
Article 16 .- In the "Basics of Project" and the granting of the Mining Concession.
16.1 The petitioner shall have up to (01) year from the date of the request asked for the presentation of the "Basic Information Project." Upon receipt of this document, the Regional Government INGEMMET or after checking for compliance with the requirements that must contain the basic information of the project, initiate the consultation process en aplicación de lo establecido en los Títulos I y II del presente Reglamento.
16.2 Una vez concluido el proceso de Consulta, el INGEMMET o el Gobierno Regional correspondiente, emitirá el acto administrativo otorgando o denegando la(s) concesión(es) solicitada(s). Dicho acto deberá ser motivado, incluyendo en su parte considerativa o en su exposición de motivos, el análisis del resultado del proceso de Consulta y del contenido del Acta de Consulta, en el marco del Convenio Nº 169 de la OIT y de la Constitución Política del Perú.
16.3 En caso el peticionario no cumpliera con presentar la “Información básica del Proyecto” en el plazo establecido in section 16.1 of this Article, the INGEMMET or the relevant Regional Government, declared abandoned the procedure and the free area as reported respondent.
Article 17 .- In awarding benefits, Labor and Transportation General Mining.
will be carried out a consultation process prior to awarding concessions for profit, general labor and mining transport if: a.
Existed in the area requesting any of the aforementioned awards one or more indigenous peoples and,
b. The location of any of the aforementioned concessions were inside a mining concession that has not been approved after a process of consultation, and / or c.
The concessions referred to above are to be developed in areas that have not been the subject of prior consultation process.
Once the consultation process, the Directorate General of Mines issued the administrative act granting or refusing the grant requested. This act must be motivated to include in its preamble and in its preamble, the analysis of the outcome of the consultation process and content of the Minutes of Consultation in the framework of Convention No. 169 of the ILO and the Constitution of Peru . CHAPTER
2 ENERGY SECTOR
Subchapter 1: ELECTRICITY
Article 18 .- Administrative Measures concerning Consultation on the Electricity Subsector.
administrative measures are likely to directly affect indigenous peoples and, therefore, subject to consultation: the granting of temporary and permanent concessions of power generation and transmission as well as granting permission for thermoelectric power generation.
The consultation process was carried out in accordance with the rules and procedures set out in Parts I and II of this Regulation.
Article 19 .- Opportunity consultation process regarding the granting of concessions and authorizations Power.
19.1 If in the area of \u200b\u200ba power generation project, you will find one or more indigenous peoples, the natural person or legal entity must apply for a temporary grant of pre-grant so final. The granting of the concession period is subject to the process of consultation to be carried out by the Directorate General of Electricity.
If temporary concession had been the subject of consultation and include the same areas as the final grant, the grant the latter does not require consultation process.
19.2 If in the area of \u200b\u200ba power transmission project, you will find one or more indigenous peoples, the provision of electricity transmission concession is subject to the process of consultation to be carried out by the Directorate General of Electricity.
If the temporary grant of power transmission have been the subject of consultation and include the same areas as the final transmission concession, granting the latter does not require consultation process.
19.3 If in the area of \u200b\u200bthermal power generation project, you will find one or more indigenous peoples, the granting of authorization shall be subject to thermal generation process of consultation to be carried out by the Directorate General of Electricity.
19.4 In the case of power projects that the Ministry of Energy and Mines PROINVERSIÓN instruct the Directorate General of Electricity will make the process of consultation before the grant of power law for which will have the necessary technical information project for the consultation process. 19.5
Once the consultation process, the Ministry of Energy and Mines issued the administrative act granting granting or denying the request. This act must be motivated by taking into account the outcome of the consultation process.
SUBCHAPTER 2: GEOTERMIA
Article 20 .- Administrative Measures concerning Consultation for the granting of authorizations Geothermal.
administrative measures are subject to consultation, the granting of permission for geothermal exploration and geothermal grant, which may directly affect indigenous peoples.
The consultation process was carried out in accordance with the rules and procedures set out in Parts I and II of this Regulation.
Article 21 .- The process of consultation for Geothermal Exploration Permit.
If the area applied for geothermal exploration, we find one or more indigenous peoples, the granting of exploration approval is subject to the consultation process undertaken by the Directorate General of Electricity.
Article 22 .- The consultation process for the approval of geothermal.
22.1 is carried out the consultation process prior to awarding concessions for geothermal exploitation in the area if there is one or more people required Indians. 22.2
Once the consultation process, the Directorate General of Electricity shall issue the administrative act granting or refusing the grant requested. This act must be motivated by taking into account the outcome of the consultation process.
22.3 In case the area applied for had undergone a consultation process for geothermal exploration and include the same areas as geothermal granting the order for the latter does not require consultation process.
SUBCHAPTER 3: OIL
Article 23 .- Administrative Measures concerning Consultation in Subsector Hydrocarbons
are administrative measures concerning consultation process prior to the signing of the contracts referred to Article 10 of Supreme Decree N º 042-2005-EM Consolidated Amended Text of the Organic Hydrocarbons Law, the granting of concessions for transport and distribution of hydrocarbons through a pipeline network, and permits for the installation of processing plants and oil refining, which may directly affect indigenous peoples.
The consultation process was carried out in accordance with the rules and procedures set out in Parts I and II of this Regulation. Article
24 .- Opportunity Consultation process for the process leading to the signing of the contracts referred to Article 10 of Supreme Decree N º 042-2005-EM.
Prior to the signing of the Contract for Exploration and Exploitation or Exploitation applicable, as established by Supreme Decree N º 042-2005-EM Consolidated Amended Text of the Organic Law of Hydrocarbons, PERUPETRO, will perform Consultation process in accordance with those reported in Parts I and II of this Regulation, if the area subject of the contract to be signed directly affects one or more indigenous peoples.
The result of the process Consultation should be sent to the Ministry of Energy and Mines prior to the issuance of Presidential Decree authorizing the signing of the contract concerned.
Article 25 .- In the concessions for the transport and distribution of hydrocarbons through a pipeline network.
For purposes of the provisions of Article 76 and following the Supreme Decree N º 042-2005-EM Consolidated Amended Text of the Organic Hydrocarbons Law, the Directorate General of Hydrocarbons, prior to awarding concessions for the transportation and distribution oil through a pipeline network, will carry out the consultation process in accordance with those reported in Parts I and II Regulation, provided that the administrative measure is likely to directly affect indigenous peoples.
If the subject area of \u200b\u200bapplication for transport and distribution of hydrocarbons through a pipeline network, had been the subject of a consultation process prior to the application, the grant award will not require consultation process.
Article 26 .- In the Permissions for the installation of processing plants and Oil Refining.
For purposes of the provisions of Article 74 of Supreme Decree N º 042-2005-EM Consolidated Amended Text of the Organic Law of Hydrocarbons, the OSINERGMIN prior to the issuance of the Technical Report of Favorable for installation and processing plants of oil refining, should carry out the consultation process in accordance with those reported in Parts I and II of this Regulation, provided that is capable of directly affect indigenous peoples.
If the subject area authorization application for the installation of processing plants and oil refinery, had been the subject of a consultation process prior to the application, the latter does not require consultation process.
Article 27 .- Transport and Distribution Hydrocarbons through a pipeline network managers to PROINVERSIÓN.
In the case of transport projects and distribution of hydrocarbons through a pipeline network whose process of investment promotion commission the Ministry of Energy and Mines PROINVERSIÓN, the Directorate General of Hydrocarbons will make the process of consultation before the grant of the grant or authorization, for which will be the project's technical information necessary for the consultation process, whenever that might affect indigenous peoples directly.
If the area for the grant of transmission and distribution network hydrocarbon pipeline, had been the subject of a consultation process prior to the application, the grant award will not require consultation process.
SUPPLEMENTARY
First .- The General Office of Social Management of the Ministry of Energy and Mines may be called by the entity responsible for carrying out the consultation process as a technical advisory body in this process .
Second .- The Ministry of Energy and Mines may report the results of the consultation process to state agencies associated with energy mining activities.
Third .- If no procedural or vacuum is applied in addition to the rules of participation for each subsector.
Fourth .- The amendments and additional provisions of this Regulation shall be subject to the consultation process as set out in Parts I and II of this Regulation.
TRANSITIONAL
First .- administrative proceedings commenced before the effective date of this rule shall be governed by participation rules in force at that time.
For Second .- Ministerial Resolution setting out the measures relating to the provisions of this Regulation.
0 comments:
Post a Comment