The case concerns over 40 years of oil pollution and extensive oil contamination in indigenous territories, an area denominated as Lot 1-AB (currently known as Lot 192), and the failure of businesses and the Government of Peru to ensure remediation. The oil concession Lot 192 is located in the basins of the rivers Pastaza, Tigre, Corrientes and Marañón, in the department of Loreto – Peru, and is inhabited by the indigenous communities Quechua, Kikchua, Achuar, Kukama-kukamiria and Urarina.
For approximately 20 years, U.S.-based Occidental Petroleum extracted oil in the concession formerly known as Lot 1 A/B, resulting in widespread contamination. After the departure of Occidental Petroleum, Argentina-based PlusPetrol del Norte began to extract oil from the concession, resulting in further oil contamination in the region, through its operations, as well as the rupture of oil pipelines operated by the Peruvian State-owned PetroPeru. PlusPetrol was obligated to remediate its own contamination and the contamination left by Occidental when it relinquished control of the oil concession in 2014.
Communications by U.N. Special Rapporteurs
On November 7th of 2014, the state-owned oil company, Perupetro, announced publicly that the bidding process for Lot 192 (1-A/B) would start in December 2014. The announcement was made in disregard of a previous agreement between Perupetro and the indigenous communities to remediate a previous environmental damage that was not repaired. Additionally, their right to prior consultation under the Peruvian Constitution was ignored.
In an joint urgent appeal to the Peruvian Government, issued on the 8th of December 2014, the Special Rapporteur requested the Peruvian Government suspend the bidding process for future oil exploitation until necessary measures were taken to fully remediate the environmental disaster in the area and to guarantee the rights of indigenous communities (PER 3 2014). A consultation process was announced, and a follow up letter by the Rapporteurs was sent (PER 4 2015).
In a letter dated July 27th, 2015 the Peruvian Government (PER 1 2015 Reply) replied to the Rapporteurs. It was stated that for the past years, different indigenous organizations demanded a compensation payment from the company Pluspetrol del Norte S.A. due to the use of their lands, and requested the intervention of the Peruvian government. A Multisector Commission was created on behalf of the national authorities to deal with the complaints of the indigenous communities, but their requirements were not fulfilled with regard to the repair of the damage and to the right to previous consultation. In consequence, a Development Commission was installed between the government and different indigenous organizations. Regarding the detention of the bidding process of the Lot 192, the Government stated that the previous consultation pre-requisite was fulfilled. Thereupon, an agreement was subscribed on March 10th of 2015, in relation to some tasks, measures and requirements for the integral and intercultural development, the environmental remediation, land titling and the bidding process of the Lot 192. It was concluded that the indigenous peoples were taken in consideration as to the right of previous consultation, and that the indigenous communities accepted the bidding process.
On august 27th, 2015 a follow up letter was sent by Special Rapporteurs regarding the “Act of Lima” (“Acta de Lima”) and the process of previous consultation (PER 4 2015). In the Act, both the indigenous communities and the government agreed on a parallel process of previous consultation and on the continuation of the bidding process, as well as other actions taken in order to remediate the contamination, which is the responsibility of the Argentinian company, Pluspetrol del Norte S. A.. It was stated that the land titling was not accomplished as well as the remediation of the damage and other actions that were promised in the agreement. For the indigenous organizations, the consultation should include 4 topics: the recognition on property rights on the land, the right to a healthy environment, the right to a direct participation from the local communities, and the inclusion of an agreement of direct participation in the benefits result of the oil extraction. According to the Special Rapporteurs, the process of previous consultation didn’t accomplished the minimum standards of opportunity, interculturality, good faith, flexibility, reasonable term, absence of coercion and timely information. Therefore, the agreements into the “Acta de Lima” were considered a disappointment.
In its response of October 26th, 2015 (PER 4 2015 Reply), the Peruvian Government indicated that the dialogue stablished in the Multisector Commission was very productive in regards to the solution of the damages remediation (in process), land titling (in process), basic sanitation services and the previous consultation, which in the point of view of the Peruvian government, was fulfilled according to the Peruvian Law of Previous Consultation and to the Convention 169 ILO. Additionally, significant progress has been made in relation to previous demands of the local communities such as sanitation, land titling, interculturality, among others. Finally, a contingency fund for environmental damage was created with the participation of indigenous authorities for the amount of US$ 50,000,000.00.