October 2004

Introduction and background:

The existing Forest Law in Peru has been a source of controversy and tension between indigenous peoples and the government since its formulation 1999 and its hasty adoption in 2000 under Fujimori’s government. Though the law was amended in 2001 with some important safeguards for indigenous rights, indigenous peoples’ organisations complain that the final law remains overly focused on timber extraction. They complain that the law does not address indigenous calls for a more a holistic ecosystem approach encompassing food and livelihood security and traditional knowledge. Indigenous organisations had warned the government in 2000 of potential land conflicts if the implementation of the new forest law went ahead without first resolving the land rights issues. [1] Despite these warnings, the government launched the implementation of the concession system at full speed in many departments in 2001 and 2002 without respecting indigenous territorial rights.  One exception was in Madre de Dios, where intense pressure and advocacy by indigenous leaders managed to ensure the concession system excluded titled indigenous lands and the territories of indigenous peoples in voluntary isolation. [2] Despite this achievement, the illegal logging mafia in Madre de Dios continues to promote massive invasions of loggers into the protected territories of indigenous peoples. The same mafia, which is currently linked to the regional government, is trying to open up more forest to exploitation by using divisive political means to undermine indigenous-civil society alliances that work jointly to defend indigenous rights and protect sensitive forest areas. [3]

In the face of growing concerns over the whole timber concession system and continuing forest crisis in Peru, several indigenous organisations decided to hold a series of meetings to assess the current problems and devise strategies to tackle the forest crisis affecting Native Communities. To this end, the Organización Regional de Aidesep de Ucayali (ORAU), the Federación de Nativos del Río Madre de Dios y Afluentes (FENAMAD) and the Asociación Regional de Pueblos Indígenas de Selva Central (ARPI-SC) of the Asociación Interétnica de Desarrollo de la Selva Peruana (AIDESEP), each held a regional workshop on forest policy and indigenous peoples’ rights in May and June 2004. The workshops involved leaders of indigenous federations and members of grassroots communities, as well leaders and lawyers from AIDESEP’s national office.* This article aims to outline some of the main findings and recommendations of the workshops and provide an update on the current situation.

Insecure land and territorial rights:

Participants in all three workshops reported that many indigenous peoples and Native Communities suffer insecure land tenure as their lands are not titled and their territorial rights are not recognised by the State. All over the region, applications for extension of land titles are gathering dust because they have not been processed by the Special Land Titling Programme (PETT) of the Ministry of Agriculture. At the same time, the national land cadastre remains incomplete and inaccurate and continues to cause serious legal disputes and demarcation conflicts on the ground.

Superimposition of the forest estate and concessions on indigenous territories:

The long-standing crisis in indigenous land and territorial security has been made worse in many parts of the Peruvian Amazon since 2001 with the accelerated implementation of the 2000 Forest and Wildlife Law, which has resulted in the widespread imposition of Permanent Production Forest and timber concessions on titled and untitled indigenous lands and territories in Ucayali, Selva Central and Loreto. The dangers of rushing the implementation of a new timber concession without first resolving land rights issues were highlighted many times by indigenous organisations in 1999 and 2000, but the Peruvian government simply made promises to respect indigenous rights and pressed ahead anyway.

After three years of Forest Law implementation, indigenous organisations complain that the government has broken its promise to respect the rights of indigenous peoples and Native Communities – in violation of ILO Convention 169 and other international instruments ratified by Peru. They protest that in the vast majority of cases, the government designated areas of Production Forest and sold timber concessions without prior consultation with affected communities and without their prior informed consent. Indigenous lawyers also stress that INRENA has violated domestic laws, including the very same Forest Law and the Organic Law of Sustainable Use of Natural Resources because it did not undertake proper social, ecological and economic zonification prior to its legal definition of Permanent Production Forest zones.

Failure to address land tenure and territorial rights issues in the concession system has resulted in numerous cases where the forest estate and concessions have been superimposed on indigenous territories and the lands of local communities.

• In Ucayali: at least 23 cases (the number is growing as indigenous people realise their land is claimed by concession holders when they turn up to occupy their contract area)

• In Selva Central, all four Permanent Production Forest zones designated by INRENA in 2002 have – to a greater or lesser extent – been superimposed on indigenous lands

• In Loreto, there are at least 8 cases of superimposition of timber concessions on titled Native Communities and an unknown number of untitled indigenous communities that have concessions superimposed on their forest lands. Large-scale superimposition of Permanent Production Forests and timber concessions likewise affects the proposed Apayacu-Ampiyacu-Algodon Communal Reserve and four territorial reserves for uncontacted indigenous peoples (Reservas Territoriales para no contactados Napo, Tigre, Yavarí-Tapiche and Yavari-Mirim)

There are now an increasing number of conflicts with concession holders and logging companies whose concessions overlap and/or border Native Community territories. One of the most serious cases is that of Chorinashi Native Community on the Cohuenga River in Ucayali, where the timber company Consorcio Forestal Amazónico (CFA) occupied a concession inside community territory and opened logging camps in 2003. After community members took direct action to dismantle the logging camps and decommission machinery on their lands, the company launched legal action against 10 indigenous leaders. ORAU and AIDESEP are challenging these sanctions in the courts.

Leaders of ORAU and AIDESEP supporting the Chorinashi case have been subject to pressure from timber companies and environmental NGOs such as WWF-Peru (who is supporting CFA in a forest certification project) to abandon their critical position on the Forest Law and concession system. At the community level, there disturbing reports that timber companies like CFA are using the so-called multi-stakeholder Forest Management Committees (under the Forest Law) to co-opt indigenous communities and neutralise their opposition to unjust timber concessions.

Government reluctant to address errors in the concession system:

INRENA has made public commitments to review the limits of permanent production forest where contracts have still not been issued or where registered titled lands are affected. However, it stubbornly refuses to annul concessions affecting untitled indigenous ancestral lands that have already been sold off to loggers. Once awarded, timber concessions are very difficult to annul as under the Forest Law concession holders have a form of property right valid for up to forty years. INRENA maintains that it would be liable for breach of contract if such concessions were revoked. It asserts that indigenous applications for land title will therefore not be processed until after the concession contract has expired – which may be as long as forty years after the contract was agreed.

Trapped in a concession straitjacket:

In Madre de Dios, the regional indigenous organisation FENAMAD was able to avoid superimpositions of timber concessions on Native Communities due to its intense pressure on the government which persuaded INRENA officials to correct their forest plans using existing maps of ecological and social zonification prepared by Instituto de Investigaciones de la Amazonia Peruana – IIAP. In accordance with the law, this information was used to correct government maps before the permanent forest estate was legally designated. Although the concession system has excluded titled Native Communities, FENAMAD now recognises that there may be serious problems for communities that wish to extend their titles in the future because they are surrounded by forest and other resource concessions, which are valid for up to forty years. In the Madre de Dios workshop, participants stressed that are now surrounded by timber concessions or ecotourism concessions that are directly adjacent to community boundaries and so there is no space whatsoever for extension of community lands: “estamos bien adjustada: no tenemos vida!! -- we are very closed in: we have no life!"

Indigenous communities under siege by loggers:

Valuable timber like mahogany and tropical cedar is today largely confined to the lands of Native Communities and the territories of indigenous peoples in voluntary isolation as well as communal reserves and other protected forest areas. All worhops reported that forests within indigenous territories are under siege by outsiders eager to extract timber and exploit Native Communities. Both titled and untitled communities have regular conflicts with illegal loggers who invade their ancestral territories to cut timber without permission. At the same time, illegal loggers in Madre de Dios and elsewhere are organising mass invasions of the territories of indigenous peoples in voluntary isolation with the explicit aim of forcibly displacing them in order to claim such peoples do not occupy forest areas rich in valuable timber. In Ucayali, for example, illegal loggers have opened logging roads deep inside the Reserva Murunahua, which threatens the integrity of territories of indigenous peoples in voluntary isolation.

Throughout the region informal illegal loggers and so-called “legal” timber companies use devious and manipulative strategies to gain access to Native Community resources. Loggers and timber firms often fabricate informal written agreements or make formal contracts with community leaders without the knowledge or consent of the wider community. In many communities, effective collective decision-making structures are absent and loggers take advantage of these weaknesses to make deals with individuals or small groups.

An increasing number of medium and large-scale timber companies now proactively and eagerly offer to support Native Communities to obtain a Timber Extraction Permits in order to ‘legalise’ and launder (blanquear) their own illegal timber extracted from outside the permit area. These companies offer to supply machinery and lumber workers to harvest timber as well as transport to and ship the timber to saw mills and the market. The companies pay the communities desperately low prices for their timber and discount the greater part of the company’s costs as “credit” extended to the community, which the communities must repay in labour or timber. As Kruger Pacaya, president of ORAU explains, perversely the Forest Law and concession system are being used to further illegal logging and continue centuries of exploitation of indigenous peoples in the Amazon:

“It is tragic! The new concession holders are using their contracts with the government to cover up illegal logging. They continue to enter into indigenous territories and protected areas adjacent to their concessions in order to harvest mahogany and cedar. They are doing the same with Native Community timber permits and tax codes which they use to launder illegal timber taken illegally from other areas. All they leave behind is an impoverished forest and huge tax liabilities that the community has no way of paying. Our people are still being abused and exploited by loggers just as they have always been…”

Workshop participants stressed that vast majority of logging operations in the Peruvian Amazon are uncontrolled, indiscriminate and destructive, irrespective of whether or not such extraction is considered illegal or ‘legal’. They described the devastating social, cultural and environmental impacts of logging teams working in local communities:

“The logging teams overwhelm our communities and take our daughters and insult our traditions. Their machines destroy our forest, which becomes impoverished fallow without game, fish and the natural materials and resources we need to survive. They inflict grave damage to our gardens, orchards and our natural storehouse in the forest. The loggers give trivial gifts and often do not make promised payments to the community or only pay a fraction of the sum agreed. When the timber runs out, they abandon the community and leave behind single mothers and children without fathers. Their legacy is hunger, poverty and hopelessness that drive our young people to the towns and cities to look for   paid work. Our culture is undermined and our social organisation is damaged. The logging industry is generating a major social and organisational crisis in our communities and is destroying our livelihoods...”
[Victor Salazar Paucar of Unión Asháninka Nomatsiguenga del Valle de Pangoa (KANUJA), Forest Policy and Indigenous Rights Workshop, Satipo, 7-8 June, 2004]

Distorted and unjust implementation and enforcement of the Forest Law:

Workshop participants repeatedly complained that the legal and technical requirements for obtaining a Timber Extraction Permit are onerous, cumbersome and costly for Native Communities. Many indigenous communities are unable to obtain Timber Extraction Permits as they have no land title or their titles are not registered in the public records. These obstacles condemn communities without recognised titled to ‘illegal’ informal extraction. Titled communities without sufficient economic resources, are obliged to seek technical and economic assistance from exploitative companies that obtain Extraction Permits on the community’s behalf, enabling their timber business to secure an exploitative grip on the community and its forest resources.

Indigenous peoples say the current Forest Law is not being implemented fairly as INRENA are quick to punish even minor infractions of the law by Native Communities, but they fail to take action to penalise large concession holders or illegal loggers and often receive bribes from such illegal operators. INRENA authorities in Loreto are even demanding extraction permits from indigenous individuals and communities for the use of timber subsistence and cultural purposes – in direct violation of the Forest law itself that expressly permits extraction for domestic and cultural use. Indigenous communities therefore feel unfairly harassed by the forest authorities while large illegal loggers carry on their destructive trade with impunity:

The whole question of legality and illegality is complex in Peru. There are many different levels and scales of illegal operations: artisan, communal, small informal loggers, medium sized commercial timber companies, large-scale timber companies, transport companies and supposedly ‘legal’ concession-holders. Large timber companies supported by the government may have concessions, but they are often still integrally involved in the illegal timber trade. The concession holders violate the rights of indigenous peoples, but they are supported by the State and environmental NGOs determined to help them certify their logging. We have criticised commercial timber firms like CFA in the FSC Peruvian Chamber. We question the legality of their operations on indigenous lands: but no-one is listening! [Kruger Pacaya, President, ORAU, Pucallpa, May 2004]

Many indigenous people taking parting the workshops expressed frustration that the government has failed provide targeted assistance to Native Communities to help them become “legal” and sustainable commercial timber extractors. Although the government and international donors have set up some modest initiatives to support concession holders through FONDEBOSQUE, funds have largely benefited timber companies and have not reached indigenous communities. Even though one indigenous representative sits on the Board of FONDEBOSQUE, he complains bitterly that indigenous priorities and repeated requests for more support for Native Communities have been ignored. For their part, a few NGOs do have local projects with indigenous communities (e.g., AIDER project, Ucayali), but their coverage is limited. Most large NGOs, like WWF-Peru, work primarily with medium and large-scale companies through projects like CEDEFOR, while their scale of work with Native Communities is insignificant.

All three workshops considered that the Forest Law and the government forest authority (INRENA) are not geared towards supporting small-scale timber extraction and there is little or no support for Native Communities. There was consensus that the Forest Law primarily benefits medium and large industrial logging companies, forestry consultancy firms, lawyers and environmental NGOs contracted to draw up General Forest Management Plans and Annual Operational Plans. Even if communities manage to secure support for Native Community permits, the management plans are drawn up by forest engineers who fail to respect traditional forest-related knowledge and customary resource management. It was concluded that INRENA is not taking priority measures to support Native Community applications for Timber Extraction Permits and is therefore violating Article 12 of the Forest Law.

Recommendations:

The workshops resulted in numerous general and specific recommendations. Some of the main recommendations highlighted the need to further denounce the violation of indigenous peoples’ rights by INRENA and logging companies and to call on the government to annul permanent production forest and concessions imposed on indigenous lands without their consent.

It was likewise recommended that the government’s Special Land Titling Programme (PETT) should urgently prioritise the recognition and titling of Native Communities suffering impositions of Permanent Production Forest and Timber Concessions, and should update, correct and standardise a single cadastral system for indigenous communities and for use by all government and non-government agencies.

It was decided that organisations should use local and national courts to challenge the government for implementing a flawed concession system without first obtaining the informed consent of affected communities, without resolving outstanding land conflicts and without carrying our prior social and ecological zonification as required by the law. If the domestic courts cannot provide remedies, then indigenous organisations will make formal appeals to the Inter-American Commission for Human Rights, the ILO and other international bodies.

Participants also called for a series of legal and policy reforms including the need for laws to increase the status and protection of Reserves for Indigenous Peoples in Voluntary Isolation, and legal measures to establish an alternative regime for Native Community timber extraction permits and stumpage tax – adapted to their cultural and economic realities.

Those attending the workshops were unanimous that INRENA should be either radically reformed or abolished and replaced with a more effective authority whose staff must recognise and respect the rights of indigenous peoples and Native Communities. It was emphasised that the reformed authority must take immediate action to investigate and sanction large illegal loggers and punish concession holders for their illegal laundering operations.

It was also agreed that the government should be pressed hard to comply with its legal obligation to attend to Native Communities as a priority. Such attention should include direct support to base communities for obtaining timber extraction permits and formulating their own General Forest Management Plan according to their own knowledge, traditions, principles and priorities.

In terms of action at the community level, participants consistently pinpointed the need for communities to organise to take immediate collective action to defend indigenous territories from invasive loggers. There was likewise consensus that communities must take measures as soon as practicable to strengthen communal structures for transparent and accountable collective decision-making on community use and commercial exploitation of timber and other natural resources.

Current Situation:

In recent months regional indigenous organisations in Ucayali, Selva Central and Loreto have issued press releases and public statements calling for action against illegal logging affecting indigenous territories and condemning the failures of the government to properly respect indigenous peoples’ rights in implementing the concession system. In June 2004, indigenous representatives and national and internal support NGOs issued at the Annual Meeting of the Amazon Alliance in Iquitos issued a public statement calling for:

“ A complete halt to the forest concession system until the process can guarantee the recognition, extension and titling of the territorial property of indigenous peoples...[ and ]...Action to stop and sanction the massive illegal extraction of timber by informal loggers, timber companies and their chains of credit and debt (habilitación), which affect the territories of indigenous peoples in voluntary isolation in Madre de Dios, Ucayali, Huánuco and Loreto and threaten to cause the genocide on these peoples”
(Peru 21, Sunday 4 July 2004).

Another memorandum from indigenous organisations in Selva Central (among many specific other demands on land titling and demarcation etc) again called for:

“Annulment of forest contracts, exploitation units and timber concessions that have been superimposed on the territories of Native Communities as a consequence of the failure to undertake appropriate consultation, and which affect the lives and future of affected communities (and) Repeal of the government resolutions creating Permanent Production Forest superimposed on Native Communities….” [4]

In August 2004, a similar statement from indigenous organisations in Loreto declared:

We denounce INRENA for implementing concessions and Permanent Production Forests which have been granted to…irresponsible companies – as an assault on the fundamental rights of indigenous peoples, farmers and riverside communities…We reject the regional norms applicable to (timber) concession contracts in Loreto…and declare this norm unconstitutional and we consider the actual process of forest concessions as illegal.” [5]

In the same month, ORAU sent a formal letter to the Minister of Agriculture requesting exclusion of timber contracts and Permanent Production Forests from specific indigenous ancestral territories in the department of Ucayali. [6] In late September 2004, AIDESEP issued further public statements criticising the lack of action by the government and calling for greater protection of indigenous peoples in voluntary isolation and reform of the Peruvian Constitution and laws to better recognise and respect the rights of indigenous peoples. [7]

In view of the serious ongoing problems with government forest policy, indigenous organisations will further consolidate their demands for legal and policy reform and redress of existing grievances in a national indigenous conference on forests and biodiversity to be held in Lima in October 2004.

This article was written by Tom Griffiths tom@forestpeoples.org

* The regional AIDESEP, ORAU, FENAMAD and ARPI-SC forest policy workshops held in May and June 2004 were undertaken with technical and financial collaboration from Racimos de Ungurahui, the Forest Peoples Programme (FPP), World Rainforest Movement (WRM) and Center for International Forestry Research (CIFOR