Peruvian law students from the Facultad de Derecho y Ciencias Políticas, Universidad Nacional de San Antonio Abad del Cusco are reporting for JURIST on law-related events in and affecting Perú. All of them are from CIED (Centro de Investigación de los Estudiantes de Derecho, a student research center in UNSAAC’s faculty of law dedicated to spreading legal information and improving legal culture through study and research, promoting critical and reflective debate to contribute to the development of the country. Kesia Marcelle Bornás is a law student from UNSAAC and a member of CIED. She files this dispatch from Cusco. 

In Peru, natural resources and the environment are of great importance, so they are protected by the constitution and other special laws on the subject. Yet measures and policies that help in environmental protection are not sufficient.

Environmental measures do not seem to be recognized and supported by Peru’s parliamentarians, as last week on Wednesday, March 14, in the plenary of the parliament a measure was approved by 78 votes to repeal a measure made by the executive where the end of the mining formalization process was accelerated for March 31 of this year.

The risk of this action is that illegal miners can now postpone their formalization until the end of this year. This means in the meantime that they can continue to carry out their activities as normal, among which are the invasion of third-party concessions and the illegal use of explosives.

Many consider that these provisions were detrimental to small-scale artisanal miners who were not yet formalized, but the restrictions that were presented, far from seeking this objective, were raised in the need to strengthen the formalization process, measures that are already being promoted, but not implemented.

One specific point concerned miners whose registration in the Integral Mining Formalization Registry (REINFO) had been suspended. The most relevant aspects of this now-repealed regulation were that they were restricted in the use of explosives and to operate they were given 90 days (expiring March 20) to present a contract of exploitation or cession of the area in which they operate, which had to be signed with the holder of the mining concession.

On March 1, a clear example of the use of explosives by illegal miners occurred in Cusco. In the district of Colquemarca, an explosion occurred in the Chapina mining operation, which operates informally in the area, killing one person and injuring 14, However, the tragedy occurred as a result of informality, since, as expected, the mining company was not included in the Integral Registry of Mining Formalization (Reinfo) of the Ministry of Energy and Mines. https://larepublica.pe/sociedad/2024/03/01/cusco-explosion-en-mina-informal-de-chumbivilcas-deja-un-muerto-y-15-heridos-lrsd-10005

As it has been seen, the efforts of the police have not been enough to stop this problematic and risky situation that puts at risk not only the adequate protection of the environment and adequate mining extraction, but also the lives of the people who operate illegally.

Now with this decision taken by Peru’s Congress, the National Police are limited, since the previous provision (now repealed) empowered the National Police to take action against the illegal possession of explosive materials in mining activities and to seize explosive materials and others; executed by people with suspended registration in the Integral Registry of Mining Formalization (REINFO).

The law was created by the executive, which exceeded its functions, since it could not penalize activities related to mining. It has also been said that parliamentarians who back the recent repeal action have given in to the various demonstrations that have taken place in the country against this regulation for being too restrictive and not “adequate”. As was mentioned during the debate stage by the president of the Energy and Mines Commission, Segundo Quiroz: “It was an inconvenient measure to deal with the complex problem of formalizing small and artisanal mining”.

Regardless of whether or not the measure adopted by the executive is the best, it is well known that the purpose is to fight against illegal mining, because we must be very careful with the regulatory flexibility in this sector and the serious consequences that may arise if we give in to it. Now the informal miners who could not comply with their previous commitments have an easier time to achieve formality without the corresponding documents and authorizations.

The country is currently facing a serious increase in illegal mining and these actions taken by the Congress leave us waiting for some measure to be taken with the seriousness of the case and latent urgency, undoubtedly a major setback in the proper regulation of illegal mining, which currently continues to operate and with more freedom than ever.