For the Indigenous communities living in Peru’s Amazon forests, achieving legal recognition that guarantees their collective rights to land can take up to 20 years and sometimes even result in lives being lost.
Twenty-three years have passed since Peru’s ratification of Convention 169, and 11 years since the signing of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). But despite these international efforts, and despite the Constitution recognizing Peru’s multiethnic and multicultural nature, the country is still struggling to promote and protect the rights of its traditional populations, particularly to land and natural resources.
Since 1974, more than 1,300 Indigenous communities of the Peruvian Amazon have obtained communal titles for approximately 12 million hectares of land, including 17 percent of the country’s forests. Even with this important progress, titling is still fraught with logistical problems, making it a long, complicated and costly process that not all communities can get through, and their rights to millions of hectares of forested land therefore remain vulnerable.
“If the rights of indigenous peoples are vulnerable, then Peru’s forests are also vulnerable,” explains Anne Larson, principal scientist at the Center for International Forestry Research (CIFOR).Over the last four years, she has been researching the implementation of collective tenure rights reforms in Peru as part of the Global Comparative Study on Forest Tenure Reform (GCS-Tenure), a research project covering six countries in Asia, Africa and Latin America.
RECOGNITION PROVES ELUSIVE
This situation affects Indigenous peoples beyond just the exercising of their rights to the land they live on. In 2014, an emblematic case illustrated the scope of the problem when illegal loggers were accused of murdering four Asháninka leaders from the community of Alto Tamaya Saweto in the Ucayali region. The community had requested the recognition and titling of its lands in 2003, but the Ucayali government suspended the titling process for more than a decade because part of the community area had been classified as production forest.
Finally, in 2015, Saweto obtained their title to communal lands thanks to the global attention the case attracted and resulting pressure from the international community for the government to respond to the community’s demands for justice. However, Saweto is far from the only community that has faced a long wait to obtain the title to its traditional territories.
According to data from the nongovernmental organization Instituto de Bien Común, 80 percent of the 1,300 native communities titled as of 2016 had not been recorded in the Public Registry, which is the final step in achieving collective rights over the lands where they live.
A BUREAUCRATIC MAZE
Although by law the communities must follow at least 20 different steps to obtain their title, CIFOR research demonstrates that in practice, at least 35 different steps are required to legally recognize, demarcate and title Indigenous communities, and even more if problems such as boundary overlaps are discovered. More than 600 communities have not initiated the legal recognition process to be able to obtain communal titles.
According to Iliana Monterroso, a GCS-Tenure researcher, the overlapping of territorial rights remains a problem and is the main cause of delays in the formalization process. “Recent studies indicate that over 40 percent of the Peruvian Amazon, some 16 million hectares, have been granted to oil or gas concessions, and at least half of that area overlaps with Indigenous communities and reserves for peoples in voluntary isolation,” she says.
“Furthermore, over 9 million hectares of commercial forest concessions [more than 50 percent of the area classified as production forest, according to the National Forest Service of Peru] also overlap with the territories of Indigenous communities.”
A NATIONAL PROBLEM
In addition to international commitments, Peru is also part of initiatives that respond to climate change, such as REDD+, that include the recognition, demarcation and titling of Indigenous communities as intermediate results to avoid deforestation and degradation. However, Peru still needs to make progress in providing a definitive solution that ensures the legal recognition of Indigenous communities in order to align itself with international trade and cooperation policies.
In 2018, the European Parliament called on the European Community, the member states and their partners in the international community to adopt all necessary measures for the full recognition, protection and promotion of the rights of Indigenous peoples, including their lands, territories and resources. It also called on member states to guarantee that all of their development, investment and trade policies respect the rights of Indigenous peoples.
Furthermore, a growing number of the world’s consumers, companies and governments are also demanding that their products come only from areas in which the land rights of populations living in the forests are respected.
“If Peru doesn’t guarantee the rights of its Indigenous peoples to land and resources, its trade competitiveness and the support of international cooperation will be affected,” Larson stresses.
MORE THAN JUST A LAND TITLE
According to Monterroso, a dozen titling programs are currently being implemented for collective lands in the Peruvian Amazon. These initiatives provide new opportunities to recognize Indigenous communities’ rights to the land and forests, but they require government support.
The CIFOR study has identified five actions that can help achieve complete implementation and protect livelihoods long term, with sustainable results for the forests as well:
- Build, and demonstrate, political will. The government must take responsibility for putting the regularization of indigenous communities’ rights on the political agenda. This involves assigning resources from the national budget for recognition, titling, granting of usufruct contracts and registration of rights, and to ensure that government institutions have the human and financial resources to finalize the implementation process.
- Simplify the current procedures, promote an integrated and consistent set of policies and processes and make a long-term commitment, including for the resolution or transformation of conflicts. According to the researchers, the problem cannot be resolved only by depending on the short-term titling projects supported by external cooperation.
- Support subnational governments, which now handle a large part of the titling processes. They need training and human and financial resources to respond to the challenges involved in titling.
- Indigenous communities may lack the technical capacities or financial resources to invest in their territories, which means that governments and nongovernmental organizations have a key part to play in providing technical assistance and support. The state can generate mechanisms for communities to obtain benefits beyond formalization, allowing them to develop their livelihoods and ensure the condition of the forests in line with their own vision.
- Although it is an essential step, the titling of communal lands is not enough on its own to guarantee control of the territory when there is pressure on strategic resources in the Amazon. Communities require support in the face of external threats and investment interests, as well as support for their organizations and federations, to define and implement their own agenda.
“It is important to note that the role of the state does not end when the title is handed over,” Monterroso stresses. “It needs to make a long-term commitment to defend those new titles from intrusions and threats and facilitate the enabling conditions to support indigenous livelihoods.”
Safia Aggarwal, forestry officer at the United Nations Food and Agriculture Organization (FAO), which provided technical support for the CIFOR study, highlights that the overlapping of the rights of Indigenous peoples with extensive areas granted to extractive activities does not mean that all such activities must be stopped.
“Extractive activities must be done responsibly, based on consultations and Indigenous people’s right to decide, beyond whether or not the community lands have a title. In addition, it is important to promote equitable alliances between the private sector and the communities so that the benefits are tangible, and so that it is also guaranteed that the industries take complete responsibility for addressing any environmental problems resulting from their activities.”
Given the lengthy and often difficult process of obtaining formalization, it is clear that Indigenous peoples’ rights to land and territory need to be ensured through policies on a national scale, whether through simplifying bureaucracy or through providing support for regional governments and the communities themselves. In the case of Peru, the evidence suggests that Indigenous communities and the country’s forests will both benefit from any progress made or definitive solutions found.