"In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship."
Article 15 then provides:
"1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities."
As noted, there is no dispute between the Parties that the Convention is applicable to the indigenous peoples situated in the area of the Santa Ana Project.6 It is the case, of course, that the obligation to implement the Convention is one that falls on States,7 by implementing the Convention through national laws. In the case of Peru, ILO Convention 169 was approved and implemented in 1993 through Legislative Resolution No. 26253.
"the towns in these little red circles are not communities. They are actually, at least some of them I -I can't say all of them, but it looks like most of them are actually what I would describe as little ranch clusters that belong to a community... these belong to communities that we did, in fact, have talleres and workshops and consultations with, so many, if not all, of these. My colleague, Elsiario Antunez de Mayolo can better address this particular map because he has a lot more granularity in the field, but I can say that many of these do not constitute communities and, in fact, belong to communities that were in our community consult list, and we can establish that we've actually included all of these."25
"Bear Creek only worked with four communities and one Parcialidad in the area linked to the Mining Area. These four are Concepción de Ingenio, Challacollo, Ancomarca, and the urban community of Huacullani, and in addition, Condor Ancocahua is the Parcialidad. But the Company excluded ten communities identified by the mining company itself that were part of their area of influence and they were excluded as well as 12 communities from Kelluyo also located inside the area of influence that we see on the sketch."39
For this reason, he concluded that:
"Bear Creek’s activities were not enough to obtain the communities’ understanding and acceptance".40
"the members of the excluded communities began to protest against the Santa Ana Project. And these protests were part of a process. [which] entailed four stages: The looting and burning of the camp in 2008, the Public Hearing in 2011, the organized opposition later on after the Public Hearing, and the social explosion in the upcoming days and weeks."41
"Bear Creek knew that the neighboring communities opposed the Project... [they] knew of the protests in advance... they had all this information, even a month in advance."42
In his opinion the 2008 protest "was not an isolated terrorist act"43, and it was "not true" that it was an act carried out by outside forces.44 The protesters came from the Huacullani and Kelluyo districts, and others: "Only a small group from Huacullani supported the Project. Most of the members of the communities were against it, and that’s why they participated in this act."45
"there was no new strategy, they continued to work with the same communities and the conflict just deepened. "47
In other words, the evidence before the Tribunal made clear that the Claimant failed to take the lessons from a significant, early instance of protest.
"[i]n March 2011, members of the Kelluyo, Huacullani, Desaguadero, Pisacoma, Zepita communities, among others met multiple times to organize the opposition and to call for the cancellation of the Santa Ana Project."51
Many complaints were made to public authorities, but "[t]here was no response by the local or regional Governments"52 This led to a "social explosion", starting with local protests in Huacullani in March 2011, which moved on to Desaguadero and Juli in April 2011, with the blockage of an international highway and closure of the bridge connecting Bolivia to Peru. A 48-hour regional strike followed, which offered "a serious warning" given the widespread participation, and then "the death of a protester from Kelluyo, [which] worsened the situation amongst the community members. "53 Thereafter,
"Protests spread to cities with larger populations, they moved on to Juli, that was the capital of the Province […] finally, we see the third phase, that is the radicalization of protests, protests at the Juliaca Airport. [a]nd the Aymara protests took place in Lima."54
"That Bear Creek, did not understand the Aymaras and they did not understand their communal relations. Despite opposition to the Project, Bear Creek continued using the same strategy that led to division amongst the communities. If Bear Creek had understood how to work properly with the communities - with the Aymara communities, the social conflict would not have reached crisis levels as we saw in the region. "
"If the mining activities had not been halted, the protests would have continued. "55
"The communities are interrelated. They are organized by district and province. There is a federation of comunidades campesinas in the South, and there is a federation in each of the districts. And you need to talk to the federations and say, 'This is a small project. It will focus here. We need your support so that we can distribute only 120, 150, 200 jobs. This is what we have available, and I'd like to coordinate with you how to best distribute them.'"58