Energy Alert – February 2025

Provisions applicable to the prior consultation processes of the electricity sub-sector are modified and Draft Guidelines for opinion are published

On February 2, 2025, the Official Gazette “El Peruano” published Ministerial Resolution N° 034-2025-MINEM/DM (“RM 034”), which amends Ministerial Resolution N° 104-2024-MINEM/DM (“RM 104”) and provides for the publication of the draft Directive approving the Guidelines for the implementation of the prior consultation processes of the electricity subsector (“Draft Guidelines”).

RM 034 modifies two administrative measures contemplated in Article 1 of RM 104:

• Administrative Measure No. 8: granting of definitive transmission concession of drafts derived from private investment promotion processes or public bidding, will have the opportunity to carry out the prior consultation process once the Citizen Participation Plan (“PPC”) or the Terms of Reference (“ToR”) has been approved by the Competent Environmental Authority, according to the environmental study applicable to the draft; having to conclude the prior consultation process before the approval of the Environmental Management Instrument (“IGA”).
• Administrative Measure No. 9: declaration of the viability of the investment draft formulated by the General Directorate of Rural Electrification (“DGER”), providing that there will be an opportunity for the prior consultation process before declaring the viability of the draft.

On the other hand, the draft Guidelines are published and establish a period of seven (7) working days from the day following the publication of RM 034, in order to receive opinions. Below, we will comment on some of the guidelines contained in the draft Guidelines:

1. Purpose of the draft Guidelines

To regulate the actions of the Office of Dialogue and Citizen Participation Management (“OGDPC”) of the General Office of Social Management (“OGGS”), of the General Directorate of Electricity (“DGE”) and of the DGER.

2. Requirements to proceed with the prior consultation

Administrative measures 1 to 7 must comply with the requirements established in the Sole Text of Administrative Procedure (“TUPA”) of the DGE of the Ministry of Energy and Mines (“MINEM”).

The draft Guidelines indicate that for administrative measure No. 8 the PPC approved by the Competent Environmental Authority and the Report and Resolution of approval of the PPC must be submitted. In the case of drafts with an EIS or other IGA, the DGE will submit to OGGS the following information: (i) ToR approved by the Competent Environmental Authority; (ii) Report and Resolution approving the ToR; (iii) Area of direct influence (“AID”) of the drafts.

For the purposes of administrative measure No. 9, the following information must be submitted: (i) AID of the draft; (ii) Environmental management report; (iii) Information from the representatives of the localities located in the area of direct influence of the draft.

3. Details of the stages of the prior consultation process

• Stage 1: Identification of the administrative measure.- The DGE and the DGER are the MINEM bodies in charge of identifying the administrative measure subject to prior consultation.
• Stage 2: Identification of indigenous or native peoples.- The existence of localities identified as indigenous or native peoples in the area of direct influence of the electricity subsector draft is analyzed. Likewise, if indigenous or native peoples are identified, possible impacts on their collective rights are identified. The draft Guidelines establish that for administrative measures 1 to 7, this stage will be carried out within a maximum period of 210 calendar days. For administrative measure 8, the term will be up to 365 calendar days.
• Stage 3: Publicity of the administrative measure.- The OGDPC must comply with the following actions: (i) delivery of the Consultation Plan to the authorities of the indigenous or native peoples; (ii) delivery of the proposed administrative measure to be consulted and, (iii) publication of the Consultation Plan, the minutes of the meeting, and/or charges of delivery of the Consultation Plan will be published on the institutional portal of the MINEM.
• Stage 4: Information Stage: The OGDPC informs the indigenous or native peoples of the content of the administrative measure and the possible effects on collective rights.
• Stage 5: Internal Evaluation.- The indigenous or native peoples evaluate the measure and elaborate their proposals. The peoples communicate the result of their evaluation to OGGS through a written and signed document and attaching the Internal Evaluation Act.
• Stage 6: Intercultural Dialogue.- The Stage must be conducted by OGGS through the OGDPC, with the participation of the DGE and/or DGER. The dialogue with the accredited representatives presented by the indigenous peoples is carried out on the grounds of the administrative measure and on the results of Stage 5, with the purpose of seeking agreements.
• Stage 7: Decision.- The final decision on the approval of the administrative measure subject to consultation is the responsibility of the DGE and/or DGER. The competent entity must communicate the decision adopted to the indigenous or native peoples consulted, attaching the Resolution and/or report granting the concession and/or approval of the declaration of viability of the administrative measure, as appropriate.

For further information, please contact Verónica Sattler (vsattler@estudiorodrigo.com), Alejandro Manayalle (amanayalle@estudiorodrigo.com) and Margarett Matos (mmatos@estudiorodrigo.com).