Peru: Court sides with Indigenous on Mining

The Second Mixed Court of Desaguadero issued a landmark ruling for the Indigenous Aymara peoples, annulling mining concessions Kelluyo 01-07, which spans 6,400 hectares. These concessions overlap with the territories of Indigenous peasant communities in the Kelluyo district and were granted without conducting the prior consultation process, thereby violating Convention 169 of the International Labor Organization (ILO).

In 2024, the Indigenous peasant communities of Alto Aracachi and Chacocollo—along with their annex, Isca Chacocollo—filed a writ of amparo (constitutional protection lawsuit) against the Geological, Mining, and Metallurgical Institute (INGEMMET), the Ministry of Energy and Mines (MINEM), and the mining company Nueva Energía Metales S.A.C. The lawsuit was grounded in the violation of fundamental rights, specifically the right to prior consultation, the right to territory, and the right to self-determination of Indigenous peoples.

This recent ruling sets an important precedent in defense of Indigenous territories. Beyond legal terminology, the judgment acknowledges that the Peruvian State, acting through institutions such as INGEMMET and MINEM, has failed to fulfill its obligation to respect fundamental rights, particularly the right to prior consultation.

The annulled concessions directly affect not only the communities of Alto Aracachi and Chacocollo but also the urban area of the Kelluyo district, including its main square. Furthermore, they impact the Callaccame, Pusuma, and Mauri Chico river basins; these are considered transboundary basins, as their waters originate in Peruvian territory and flow into Bolivia, connecting with the Desaguadero River and Lake Titicaca.

The affected area also contains elements of significant cultural and environmental value. Prominent among these are the chullpas, which represent spiritual and ancestral expressions of the Indigenous peoples, as well as various lagoons, such as Jacha Collpa, Coracota, and Parinacota. Similarly, freshwater springs that supply the local population, a scarce resource in this area, where saltwater predominates, are also at risk.

The mining concessions, situated merely 140 meters from the border with Bolivia, posed a risk to the populations of both countries, which share economic and social dynamics rooted in agriculture, livestock farming, and trade.

In light of these facts, the court ordered the annulment of the concessions and mandated that prior consultation be conducted in a timely and appropriate manner. The ruling emphasizes that this right is not a mere formality, but rather a constitutional and international obligation. In this regard, the state cannot make decisions regarding Indigenous territories without the participation of the communities, as if these were merely empty spaces.

One of the most significant aspects of the judgment is its recognition of territory as the central pillar of Indigenous peoples’ identity. For Aymara communities, the land is not merely an economic resource, but the very foundation of their cultural, spiritual, and social existence. The ruling reflects this perspective by noting that territory fulfills multiple functions: it is a source of sustenance, a space for ancestral practices, a sacred site linked to Pachamama (Mother Earth), and the bedrock of community organization.

In this context, mining activity is not viewed as a neutral undertaking, but rather as a potential threat to ecosystems and traditional ways of life. The risk of water, soil, and air contamination is not an abstract concern, but a tangible reality that various communities across the country have already experienced.

The State, acting through INGEMMET and MINEM, argued that the mining concession is not a direct infringement, as it does not immediately authorize exploration or exploitation activities. However, the court’s ruling challenges this stance, pointing out that the concession represents the initial step in a process that may ultimately lead to the physical intervention of the territory, thereby generating tangible impacts from the very moment it is granted.

The State maintained that the right to prior consultation does not constitute a fundamental right applicable at this particular stage of the process. This interpretation was rejected by the court, which adopted a rights-protective approach, recognizing that ILO Convention 169 holds constitutional status and that prior consultation must be conducted before any measure liable to directly affect Indigenous peoples.

The events in Kelluyo transcend a specific case. They spark a debate regarding the model of development and the type of State we wish to build: one that imposes decisions without regard for communities, or one that recognizes diversity and respects collective rights.

The ruling challenges society as a whole. It invites us to question whether we will continue to treat territories merely as commodities or whether we will move toward an approach that prioritizes the rights of Indigenous peoples.

Read the original article here.

Photo: Courtesy of Hans Luiggi, available in public domain via Unsplash.