“We can’t see the wood for the trees” – the worrying reality of conservation in Peru, and a way to improve it

Originally, the Kichwa inhabited all the land in San Martin. However, due to a series of fundamental changes over the centuries, including shrinking indigenous populations in missionary centres, the imposition of colonial institutions and, later, the influx of migrants – who expropriated the territories of the original inhabitants without permission or compensation – these lands have been much reduced. Now, what remains of the Kichwa territories tends to be found in the marginal terrain of the mountains. This land was spared as migrants only spread to this region much later, preferring the more fertile and accessible land closer to the rivers.

There is a marked difference between these marginal lands and other areas in this region. While most of San Martin suffers from widespread deforestation, the mountainous regions within Kichwa territory continue to have high forest cover. At first glance, it might appear that this is because this zone was declared a regional conservation area since 2005. But looking at the history of this region, the explanation is not that simple. At the time when it was created, the Cordillera Escalera Regional Conservation Area (ACR-CE) was already a well-preserved forest area, managed by the indigenous communities. This observation can be made not only in this small district, but in indigenous territories throughout the world. It is clear from these examples that the use and occupation of these forests by indigenous and local communities is not incompatible with the long-term protection of this land. These communities know how to conserve their forests; the greatest threat, in fact, often comes from those who neither live nor depend on this land.

The Kichwa of Nuevo Lamas have an ancestral connection with this land and have managed it sustainably for many years. However, their long history of dispossession and displacement has reduced their once vast territory down to just 1,600 hectares – a tiny area, over which their land tenure is insecure. There are two key reasons for this insecurity. First, because by law, the State may not issue collective land titles to indigenous people for “lands appropriate for forest cover”, thus denying ancestral land rights to almost all indigenous communities with forested territory. The law [1] in question is highly discriminatory: it excludes from its remit all land which was already owned (titled) by the State when the law was passed, while completely ignoring the existing property rights of indigenous peoples in relation to their ancestral territories and the natural resources within them. In other words, while individuals with “lands appropriate for forest cover” can retain their titles [2], indigenous peoples with much older ownership rights will never be able to obtain land titles. Therefore, in effect, the community of Nuevo Lamas may never be granted a title for the vast majority (over 98%) of their territory; instead, they may only acquire a form of leasehold use contract, known as “cesión en uso”. This is much less than a title, as it imposes numerous limitations over the use of the territory and denies legal certainty to the community, given that the ownership rights remain with the State.

The second threat to the secure tenure of Nuevo Lamas is the establishment of the ACR-CE on the land of the community (and of many other communities). The ACR-CE was designated without consulting the affected indigenous communities, and certainly without obtaining their free, prior and informed consent (FPIC), despite the fact that it would result in many restrictions on the use of the land by these communities. These restrictions include:

• A complete ban on the use of wood (even for subsistence purposes), with the exception of a tree which has fallen through natural causes and with the authorisation of the ACR-CE administration;
• Forbidding the community from impeding new research projects from taking place in the area, thus negating their exclusive possession;
• Use – even subsistence use – of non-timber resources, can only occur in accordance with a management plan; and
• The effective prohibition of traditional rotational agriculture.

The issue – as with so many problems experienced by indigenous peoples – begins with the lack of formal recognition and adequate protection of the lands and territories of indigenous peoples. According to the international conventions ratified by (and binding in) Peru, including the American Convention on Human Rights [3] and the ILO Convention 169 on the Rights of Indigenous and Tribal Peoples, the State is obliged to recognise the right of indigenous peoples to their ancestral territories. These lands and territories must be defined, demarcated and titled by the State, in order to protect them. Even when indigenous communities have lost possession of their territories through dispossession, their right to ownership of these territories still exists. The only exception to this rule is when the land in question has been legitimately transferred to a third party in good faith. Even in this situation, however, indigenous peoples have the right to restitution, which must be considered by the State. During this consideration, the State should favour the restitution of the land to the indigenous people – and compensate the buyer in good will – unless this option is genuinely impossible or unfeasible. In these cases, the indigenous population has the right to fair and adequate compensation, preferably in the form of land of equal size and quality.[4]

The refusal to issue the people of Nuevo Lamas with a title to more than 90 per cent of their territory is a violation of these principles. The international regulation is very clear: indigenous people have the right to receive a title for the entirety of their territories. The “cesión en uso”/leasehold use contract is not sufficient, it is not equal to a land title, and in the case of the ACR-CE, it also implies significant restrictions on the occupation and use of the territory.

This is not to say it is impossible for the State to expropriate indigenous territory under any circumstances; however, there are strict and clear rules which restrict this power. The constitution requires that the expropriation must be necessary and proportionate to a legitimate objective in a democratic society, something which must be assessed on a case by case basis. Systematically depriving indigenous peoples of their forested land does not meet these requirements.

 If it is true that conservation is a legitimate goal of a democratic society, until now the state has not carried out any analyses to demonstrate that these restrictions are  necessary and proportionate, as required by the Peruvian Constitutional Court.[5] It is doubtful that such an analysis, carried out in good faith, could justify the expropriation of these lands. In terms of proportionality, it should be noted that the Inter-American Court has indicated that the expropriation of indigenous territories is considered proportional only under “exceptional circumstances”, given the serious harm that this action causes to indigenous peoples. With regards to whether the expropriation is necessary, when indigenous peoples have used the land sustainably for centuries, the State needs to justify why the continuation of these activities is inconsistent with its conservation.

In fact, in the context of San Martin, there is no evidence that the activities of the indigenous peoples have caused, or are causing, significant environmental damage.[6] It is also worth mentioning that the “necessity” criterion requires that there be no other option which would be less restrictive of human rights.  It is almost impossible to meet this condition without having carried out prior consultations. It is clearly possible that, through dialogue with the affected indigenous peoples, and through explanations of the conservation goals of the authorities, an agreement could be reached which addresses these concerns, while simultaneously respecting the territorial rights of the community.

This brings us to another issue: the lack of prior consultation and free, prior and informed consent – a strict condition if indigenous lands are to be impacted. There was no prior consultation in the case of ACR-CE (nor with the adoption of the Forestry Law); neither was there any attempt to obtain free, prior and informed consent. This is an indispensable condition of international human rights laws, without which it is considered that they have been violated. It is only possible to proceed without this consent if an adequate consultation was previously carried out, in good faith, and if the other conditions – legitimacy, proportionality and necessity – are satisfied, and fair compensation is provided. This did not happen in the case of Nuevo Lamas.[7]

The lack of recognition of indigenous ownership of their ancestral lands “appropriate for forest cover” is not just discriminatory and a violation of human rights, it is counterproductive. More and more studies suggest that strict conservation measures are less effective at reducing deforestation than the community forests which are managed and controlled by indigenous peoples.[8] As the Special Rapporteur on Human Rights and the Environment, John Knox, explained in his 2017 report:

 

59. Protecting the rights of those who live closest to nature is not just required by human rights law; it is also often the best or only way to ensure the protection of biodiversity… Protecting the human rights of indigenous peoples and local communities has been shown to result in improved protection for ecosystems and biodiversity. Conversely, trying to conserve biodiversity by excluding them from a protected area typically results in failure. In short, respect for human rights should be seen as complementary, rather than contradictory, to environmental protection.[9]

 

Deforestation and the loss of biodiversity are hugely important, for Peru and for the whole world. But the solutions must not – and do not need to – be at the expense of the human rights of indigenous peoples. It is time to rethink the legislative system of conservation in Peru, to harmonise human rights with the environment and to ensure a better future for all.

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[1] See article 11 of the Decree-Law No 22175 and article 76 of the Law No. 29673, Peru’s Forest and Wildlife Act

[2] See article 4 of the Law of Natural Protected Areas, Law No 26834.

[3]  Article 21 of the CADH protects the right to property. It is well established by the Court and by the Interamerican Commission on Human Rights that this article includes the protection of the right to ownership by indigenous peoples of their territories, whether they are titled or not, and whether this right is recognised by the government or not.

[4] This has been well established by the Inter-American Commission on Human Rights in its jurisprudence, which the Commission summarised in paragraph 117 of its decision in Xucuru v Brazil. These rulings, as well as article V of the Preliminary Title of the Constitutional Procedural Code, approved by law 28237, are binding. In this respect the Constitutional Court, in binding jurisprudence, and in accordance with article 82 of Law 28237, observed, “In consequence, in the present case there is nothing more for the Constitutional Court to do except adopt its well-established doctrine, indispensable for guaranteeing fundamental rights, whether in relation to jurisdictional, administrative or political processes: that the decisions of the Inter-American Court of Human Rights are binding for all the public authorities and this binding nature extended not only to the orders made, but to the ratio decidendi [reasons for the decision], including in those cases in which the Peruvian State was not party to the case. Constitutional Court Case No 00007-2007-PI/TC, f.j. 36).

[5] See, for example, the article by Pedro Grandez, El Principio de Proporcionalidad en la Jurisprudencia del TC Peruano. Available here: https://www.portaldeperiodicos.idp.edu.br/observatorio/article/download/394/268.

[6] In reality, during the second half of the 20th century, the principle causes of environmental degradation and deforestation were migratory agriculture and the roadbuilding promoted by the Peruvian Government, including the Alto Mayo Special Project (PEAM). In more recent years, industrial agriculture, the expansion of oil palm and – to a lesser extent – the extraction of gold, have caused additional negative impacts on the environment. Valqui, M., Feather, C. & R. Espinosa Llanos. 2014. Making the Invisible Visible: Indigenous Perspectives on the Deforestation of the Peruvian Amazon. Lima: AIDESEP & FPP. Pages 101-108.

[7] In compliance with the legal basis 23 of the STC No 00025-2009-PI, prior consultation has been enforceable since 2 February 1995. 

[8] See e.g. J Springer and F Almeida (2015), “Protected areas and land rights of indigenous peoples and local communities” (Washington, D.C., Rights and Resources Initiative); Nelson, Andrew and Chomitz, Kenneth M. Effectiveness of Strict vs. Multiple Use Protected Areas in Reducing Tropical Forest Fires: A Global Analysis Using Matching Methods. PLoS ONE 6, n.º 8 (2011): e22722 http://www.plosone.org/article/info%3Adoi %2F10.1371%2Fjournal.pone.0022722 ; Porter-Bolland, Luciana et al. (2012) “Community managed forests and forest protected areas: An assessment of their conservation effectiveness across the tropics.” Forest Ecology and Management vol 268 6-17, http://www.cifor.org/nc/online-library/browse/view-publication/publication/3461.html; C. Sobrevila (2008), The Role of Indigenous Peoples in Biodiversity Conservation: the natural but often forgotten partners (Banco Mundial, Washington DC); S Stevens (2014), Indigenous Peoples, National Parks and Protected Areas: A New Paradigm (University of Arizona Press); C Stevens et al (2014), Securing Rights, Combating Climate Change: How Strengthening Community Forest Rights Mitigates Climate Change (WRI/RRI); V. Toledo (2007), “Indigenous Peoples and Biodiversity”, in S Levin et al (eds), Encyclopedia of Biodiversity, 2nd ed, Academic Press.  

[9] John Knox, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. UN Doc. no. A/HRC/34/49, 19 January 2017, paragraph 59.