Peru — Menace to the water resources and indigenous communities as a result of the construction of the “Ingahuasi” water collecting canal. Provinces of Huancavelica, Castrorreyna and Huaytara, Huancavelica Region (2007)

(violation of consultation rights under ILO 169)
decision from the Latin American Water Court

Case: Menace to the water resources and autochthonous
communities as a result of the construction of the
“Ingahuasi” water collecting canal. Provinces of
Huancavelica, Castrorreyna and Huaytara, Huancavelica
Region. Peru

Opposing parties: Comunidad Indígena de Carhuancho

In opposition to: El Gobierno Regional de Ica, Gobierno de la República de Perú
y el Proyecto Especial Tambo Ccaraccocha.

FACTS:
1.  The Carhuancho indigenous community’s property rights were established during the Spanish ruling in the colonial times, and they are registered in the Land Property Registration Office in Huancavelica.  This community is located in the district of Pilpichaca, Department of Huancavelica;
2.  According to the social figures in Peru, the Huancavelica Region deploys the lowest social and economic standards as well as the highest rate of extreme poverty in Peru;
3.  The main economic asset in the Carhuancho indigenous community is the livestock breeding (alpacas) for which the wetlands and grasslands are essential;
4.  The works oriented to dam the Choclococha, Orccoccocha and Ccaraccocha lagoons began in 1950, through large scale canals built across the Carhuancho indigenous community’ s territory;
5.  There is an impoundment that diverts the waters from the Choclococha lagoon and its tributaries towards the Ica valley, the estimated water extraction is 492 million cubic meters (MCM) per year;
6.  There is an ongoing decrease in the Coclococha lagoon’s water flow;
7.  The Tambo Ccaraccocha Project (PETACC in Spanish), was created by the Peruvian government in 1990, through the decree Nº 556 as an autonomous institution within the National Development Institute (INADE in Spanish);
8.  In 2003, the Peruvian national government transferred the jurisdiction over the water systems to the Ica regional government, through the Supreme Decree Nº 021-2003-VIVIENDA, although the lagoons and its tributaries as well as most of the infrastructure are in the Huancavelica Region’s jurisdiction, thus violating the second amendment of the Decentralization Law Nº 27783;
9.  In July 2006, the Peruvian national government, through the Supreme Decree Nº 039-2006-AG, dammed 52 MCM per year from the Ingahuasi basin in the Pilpachaca District, in order to increase the agricultural production and productivity in the Ica valley, based upon a water supply increase for improving the irrigation and upon the highland reclamation;
10.  Since May 22nd 2006, the Carhuancho community has opposed to the construction of the Ingahuasi Canal, and in spite of numerous actions filed before local, regional and national institutions, their claims have not been taken care of so far.  PUBLIC HEARING PROCEDURE BEFORE THE LATIN AMERICAN WATER COURT
1.  Spokespersons from the Carhuacho community filed their action before the Latin American Water Tribunal.  (LAWT).
2.  The LAWT accordingly notified the Peruvian government, the Ica’s regional government as well as the Ingahuasi Canal developers (PETACC) about the aforementioned action.
3.  The Peruvian national government did not reply; whereas the Ica’s regional government and PETACC objected the denunciation, alleging the violation of the due process, and subsequently, requested to annul the process.
4.  The LAWT overruled the objection, considering that all requirements of the due process were properly upheld.  WHEREAS:

1.  The universal acknowledgment of water in adequate quantity and quality as a fundamental human right whose plain exercise must be enforced by the Governments (Mexico City’s Public Hearing, 2006);
2.  The social right to water must not be exercised in detriment of those in close proximity to the water source of contention;
3.  The violation of the consultation right autochthonous peoples are entitle to, stated in the Covenant 169 of the International Work Organization (IWO) on indigenous and tribal peoples in independent countries, ratified by the Peruvian government and enacted in the Constitution, constitutes a transgression of the Carhuancho Indigenous community’s fundamental rights;
4.  The absence of a basin management plan hampers the proper and equitable use of soil and water resources for all basin’s inhabitants;
5.  The decrease in the water flows and the wetland and grassland deterioration caused by the PETACC project during the years of its execution;
6.  The water diverted to the PETACC project, estimated at 52 MCM per year through the construction of the Ingahuasi collecting canal, will cause damages to the environment through the disappearance of wetlands and the local inhabitants’ economic and social wellbeing.  In the view of the facts and considerations preceding, the Jury of the Latin American Water Court RESOLVES:

1.  To hold the Tambo- Ccaraccocha Project (PETACC) responsible for the destruction of the natural water system and a fundamental ecosystem for the livelihood of the local communities.
2.  To censor the Peruvian national governmental authorities, the Ica’s regional authorities and the Tambo- Ccaraccocha Project (PETACC) for their lack of commitment in fulfilling their national and international duties, as well as for their harmful actions and omissions against life, health and nature.

RECOMMENDS
1.  To immediately cease the construction of the Ingahuasi water collecting canal;
2.  To comply with the commitments stated in national and international norms regarding the indigenous communities’ public consultation;
3.  To generate indemnification mechanisms, on behalf of the Tambo-
Ccaraccocha Project, for the damages caused as well as for the retribution of the environmental services provided (The Kyoto Protocol);
4.  To execute an environmental, social and economic impact assessment ensuring the participation of the affected communities;
5.  To execute the necessary measures to mitigate the negative impacts on the damaged ecosystems;
6.  To review the Supreme Decrees Nº 021-2003-VIVIENDA and No 039-2006-
AG, in order to adjust them to the international commitments endorsed by the Peruvian government;
7.  To carry out and implement a comprehensive basin management plan based upon the former recommendations.  Fourth Public Hearing GUADALAJARA, MEXICO, 2007 Resolution unanimously rendered on the eleventh day of October, 2007