#01 Biodiversity
Silvana Baldovino

Indigenous people, native communities and their land

The land of native communities is biologically very diverse, and has been preserved by them since time immemorial. Preservation of the land is a prerequisite for survival in native communities, and knowledge acquired over thousands of years is used to develop models for working the land and its resources, and adapting them to their way of life.

Indigenous people maintain a special connection to their land, which is closely linked to their identity, existence, customs, beliefs and traditions. Land is an integral part of their spiritual life and explains why they look after it and preserve it, maintaining the eco-balance, and acting beyond the concerns of legal titling procedures, or rules on property rights.

In native communities, land is considered an entity, a unit belonging to a group of people. Land is not property to be divided. The community is a group linked by its land; land and community are two words which cannot be separated; the relationship is communal not individual. Land is the space which belonged to their forebears and will be passed down to their descendants, and therefore it is occupied according to ancestral tradition. It is home to the history of the people; it is where they live their present, and where their future will be developed.

However, despite this special link between indigenous people, their communities and the land, our legislation creates differences when granting property titles to native communities relating to the areas they occupy, and where they engage in their activities.

Legal Status

The repealed Law of Native Communities and the Promotion of Agriculture in the Rainforest and Edge of Rainforest Regions of 1974 (Decree-Law No. 20653) for the first time opened up the legal possibility of handing indigenous populations full property rights to the forests and land which they had been occupying, using a wide range of criteria for defining the outer limits of the land, and including the right to use the forest for various purposes (hunting, fishing and gathering) in this criteria. This law guaranteed the inalienable right to the land, as well as freedom from land embargoes and legal withdrawal of ownership of the communal land, and it guaranteed collective ownership. It also promoted the organisation of indigenous populations into native communities and sought to consolidate their access to land and forest.

With the introduction of the Law on Native Communities and Agricultural Development in the Rainforest and Edge of Rainforest Regions in 1978 (Decree-Law No. 22175), replacing Decree-Law No. 20653, the area of land to be considered for property ownership rights was reduced, as the rainforest was considered to belong to the nation. Native communities could therefore only gain access to these areas by legally giving up rights to the use of the land. Legal justification for this division was based on the Political Constitution of Peru of 1979, and subsequently the Political Constitution currently valid and passed in 1993. Article 66 of the above mentioned Constitution states that natural resources, both renewable and non-renewable, belong to the nation, and that the state alone has the authority to decide how these resources can be used.

In the application of Law Decree No. 22175 communal lands are defined as one single area, but divided according to the potential use of the land. In this way, property rights are granted for land for agricultural use, but not land for forestry, therefore the communities’ property ownership is limited, in most cases, to less than 50% of the area specified for them.

Native communities can exercise free rights to property in the allocated area based on this premise of division of communal land, and enjoy all inherent features associated with such rights, taking into account that any decisions must be taken within the framework of the General Assembly, as the highest ruling body. The Assembly represents all members of the community and decisions will be taken on the basis of the customs of the community. The areas where the right to use the land has been conceded remain part of communal land, but are held in state ownership. However the Law for the Promotion of Investment in the Agricultural Sector published in 1991 (Legislative Decree No. 653) states that rural and native communities, as well as rural co-operative companies with ownership rights to forestry land, will be able to enter into lease agreements relating to this land for periods up to 30 years, on a renewable basis, in cases where the land is to be used to establish and/or manage forestry plantations.

The Situation in Peru

This legal separation has divided opinion for many years on the rights of indigenous people, and access to the property in the land they occupy. In addition, the lack of economic resources allocated by the Peruvian state for the demarcation and titling of native communities’ land has further aggravated the conflict caused by the imposition of ownership rights, and the invasion of these areas by migrant populations. It is in this context that one of the main arguments put forward by the indigenous support platform in Peru is emerging and developing; they are seeking recognition and title rights for native communities yet to be formalised, and recognition of collective property rights to the land.

Land formally recognised as belonging to native communities in Peru covers an area of 10,787,211.84 hectares, according to information provided by the Organisation for the Formalisation of Informal Property – COFOPRI. This figure relates to 1,260 native communities, of which 237 are still pending formalisation. However no information is available on how many communities have requested the extension of their land, or how many indigenous groups are in the process of obtaining recognition as a native community, which will lead to subsequent formalisation requests for the land they occupy. With regard to land formally recognised as belonging to native communities, it is important to mention that there is no land registry specifying their location, giving rise to confusion about the area the land occupies, and threatening the protection of these social groups.

It is necessary to take into account the historical background to the situation, because the land belonging to native communities is host to an immensely diverse ecosystem which has been preserved since time immemorial by these people. These lands have become a major contributor to the mitigation of the effects of climate change and play an important part in the environment.

The problems relating to the land of indigenous people and its resources have been the cause of terrible incidents, like on 5 June 2009 in the north east of the country (in the area of Bagua, a region in the Amazon known as the "baguazo"), where clashes between fellow Peruvians led to the deaths of police officers and indigenous people. One of the central points in this terrible conflict was the protest by indigenous people against two decree-laws which, from the indigenous people’s perspective, infringe the rights to their land and access to their resources.

Historical Overview

It is important to understand the indigenous people’s claims from an historical viewpoint; the division of indigenous people between the Amazon and the Andes was not a feature of our legislation until 1964, when the Agricultural Reform Act was introduced (Law No. 15037). This ruling included the concept of tribes from the rainforest, and considered that where the area of land occupied by these people was sufficient to cover their needs, it would remain unaffected. It is worth noting that the above mentioned law makes no specific reference to the legal status of these social groups.

The definition of native community was first used with the introduction in 1974 of the Law Decree No. 20653 (a law since repealed), recognising both its legal existence and legal status. This law defined native communities as those “originating in the tribal groups of the rainforests and areas on the edge of the rainforests, consisting of family groups linked by the following principle factors: language or dialect, cultural and social aspects, common and permanent ownership and use of the same land, either in a settlement nucleus or in dispersed areas.”

We can interpret the definition of native communities as a term originating in a legal mandate which required these people to organise themselves in order to obtain any legal right to the land they occupy. In many cases this has led to groups of indigenous people settling in a specific area in order to secure their legal right to that land, when it is more in their nature to be constantly on the move, reflecting their knowledge of the cycles of life in the forest. This explains the applications to extend the land granted to them, and the constant claim for recognition of their right to ownership of the resources sustained by these forests, as it is these people who have been responsible for protecting the forests since ancient times.

Formalisation has not been priority for Peruvian state

Nevertheless, despite the requirements and conditions established by the above mentioned rulings, the formalisation of native communities’ land has not been a priority for the Peruvian state. There are many well-known cases of communities who have been applying for ownership rights for over 30 years and, as of today, have still been unable to obtain these. This has created a situation of vulnerability for these communities who have seen an increase in the granting of rights to other people in areas which they occupy.

In order to complete the legal picture, the varied and historical laws introduced in Peru to promote the colonisation of the Amazon must be mentioned, formalising the occupation of this area by flexible legal mechanisms allowing occupiers, migrants in many cases, to obtain access to property rights of the pieces of land being cultivated or occupied, by means of simple legal procedures culminating in the granting of ownership rights to the farmer. It was in this context that Decree-Law No. 1089 was issued to regulate the Temporary Extraordinary Rules for the Formalisation and Granting of Property Titles for Rural Plots of Land. This ruling was challenged, and a legal case presented questioning its constitutional legality, based principally on the fact that no consultation with indigenous communities was carried out prior to the enactment of this law, nor information provided to them to support this consultation, as required by Convention 169 of the International Labour Organisation, therefore affecting their right to prior consultation, and the collective ancestral right to the land.

We should also mention that on 9 June this year, in a Plenary Judicial Session, the Constitutional Tribunal declared that there were no grounds for the case presented against this law decree. The argument turned to the fact that this law specifically does not apply to communal land, and therefore as such land is not passively subject to the law, no rights were affected, and therefore no consultation process was required.

As already mentioned, the law decree challenged specifically establishes that the law does not apply to communal land. Therefore the law incorporates the legal land tenure survey in the formalisation procedure relating to pieces of rural land so that native communities’ land can be identified, whether registered or not, with the aim of ensuring such rules cannot be applied in legal procedures formalising individual property. In other words, no property rights can be granted relating to land which could belong to a native community. From this it is quite interesting to analyse whether this rule involves indigenous communities, at what level the implementation of these limits would be set, and how communities below this level of protection would be identified.

It is quite risky to assert that this law decree does not affect communal land, when there is no land registry of native community ownership rights. So we cannot specify the exact location of each community throughout the country, especially since there is no location available relating to the communities seeking ownership title, or extension to their communal land. Similarly, there is no graphic information relating to indigenous communities requesting recognition of their native community. In the absence of all this and the lack of certainty, the question we should be asking ourselves is whether it can be true that the application of this law decree does not directly affect the indigenous people of the Amazon?

Peru: Assembly of indigenous people

Indigenous people have been applying for the formalisation of land they have occupied since the time of their ancestors, and have been seeking updated plans relating to this land, and therefore despite the fact that Decree-Law No. 1089 excludes communal land from the application of this law, we are left with the concern that if this communal land is directly affected and no recourse exists to a land order in the Amazon, nor to an Extraordinary Temporary Rule, which declares the formalisation of property rights relating to rural plots of land to be in the public interest, that the principle actors in this process, the indigenous people occupying this land, are indeed affected.

The rights of indigenous people to the land they occupy will always be a subject of differing opinions because, as it is widely known, this land is home to the largest source of wealth in Peru, but it is also home to a population considered to be living in extreme poverty. This is why there is much vested interest in these areas, and why magical solutions are constantly conjured, ranging from incorporating the land into a capitalist vision, to dividing up the land into plots to improve the conditions of the people living there.

However, the authorities do not take the time to listen in detail to the proposals presented by these people. They constantly try to force them to adapt to a reality which is alien to their way of life, leading to endless conflict, and a continued failure to address their claims.