• The Peruvian Amazon is inhabited by over 50 different ethnic groups.

• Each ethnic group has a close tie to the territory it inhabits.

The indigenous peoples and the territory that belongs to them. They are inseparable. For the indigenous communities, the territory is the embryo that gave birth to their communities, including their own distinct cultures and identities. The indigenous peoples’ relationship with the land is vital; the land gives them food, a home and in it they recreate their own culture. With no land, there is no life.

For Western society, land is owned through possessing a title deed or title of ownership recorded in the Public Registries. For the indigenous peoples, the owner is “Mother Earth.” Andean communities recognize her as “Pachamama,” the Shuar people call her “Nugkui” and the Ashaninka people know her as“Kipatsi.” Each of the many communities has their own name.

In the economic market, the earth is given monetary importance and is negotiable. For indigenous peoples, the earth has spiritual importance and is sacred. From perspective of the Amazon peoples, the term ‘land’ is not relevant, but rather TERRITORY, which is an ample concept of integration, such as a collective good sharing an interdependence with nature.

The Amazon has a low-density population that needs to have a system of land rotation, given the poverty of its soil. Agricultural work is carried out by women on small plots of certain crops, creating microclimates that allow for a diversity of resources in order to adequately feed a family.

Native communities do not need extensive areas of land for agriculture, rather a system of rotation due to the poor soil. Therefore, caring for these lands is vital for their subsistence. Many Amazonian peoples have based their nutrition on gathering and being nomadic, rather than on the accumulation of wealth.

The current tendency to promote monoculture in extensive areas is generating greater fragility of Amazon soil, just as the methods to extract water, petroleum and gas.

The native peoples’ rights

The native Amazon communities are Peruvian citizens. They are entitled to all the constitutional rights and international agreements that seek to protect their cultures and lifestyles.

An example is Convention 169 of the International Labor Organization (ILO), which was signed in 1989 and promotes two basic principles:

1. Respect for the cultures, lifestyles and traditional institutions of the indigenous peoples.

2. Effective consultation and participation of these peoples in the decisions that affect them.

Article 6 indicates that the Peruvian State must: “Consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly.”

Subsequently, article 7 indicates that: “The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programs for national and regional development which may affect them directly.”

The exploitation of hydrocarbons in the Peruvian jungle

Forty-nine million hectares — 72 percent — of the Peruvian Amazon have been conceded for the exploration and exploitation of hydrocarbons. Peru has given the greatest number of concessions of any country for this activity. Brazil has only conceded 13 percent of its Amazon forests to hydrocarbon activity and Ecuador only 11 percent.

The extraction of hydrocarbons entails a high level of environmental destruction. Between 2006 and 2009, the company Pluspetrol experienced 48 oil spills between lots 8 and 1 AB, affecting the Tigre and Corrientes rivers and the rivers they feed, causing negative impacts in the 34 indigenous communities that live in these areas. According to the report prepared by the Health Ministry in 2006, 98 percent of minors in these areas exceed the permitted limits of blood cadmium levels.

The legislative decrees in question

The indigenous peoples in Peru and their representative organizations have declared themselves in permanent protest in order to abolish a series of legislative decrees that they believe violate their rights as owners of their lands and their lifestyles. These legislative decrees were passed by Peru’s president through Law No. 29157, which was made in order to write legislation for the implementation of the Free Trade Agreement with the United States.

What are these decrees and what is their effect?

The Peruvian Congress Multi-Party Commission, which has been placed in charge of evaluating the legislative decrees in question from a constitutional standpoint, concluded that decrees 994, 1020, 1064, 1081, 1083 and 1089 all violate the rights of the indigenous peoples. They also found that all the legislative decrees analyzed violate article 55 and the Fourth Final and Transitory Provision of the Constitution, by not interpreting the constitutional regulations regarding the indigenous and native communities in accordance with ILO Convention 169. Finally, the commission found that all the legislative decrees in question violate ILO Convention 169 regarding the right to Previous Consultation and Participation, expressed in articles 6 and 7.

Following is a summary of the analysis of each legislative decree, based on the report issued by the Congressional Multi-Party Commission:

Legislative Decree 994:
Promotes private investment in irrigation projects in order to extend the agricultural frontier. Considers all lands fit for agriculture as government property, except those that are registered in the Public Registries. Respects communal property on the condition that they are owned through a title deed or are registered in the Public Registries. Does not adjust to the reality: in the Amazon, the earth considered wasteland due to excess water serve as sources of subsistence for the communities — that is, while they are not useful for industrial exploitation, they do serve the indigenous peoples as sources for daily food. It is inaccurate to consider these lands unproductive since the concept of territory is more than merely an economic factor. Generally, we could conclude that this legislative decree is unconstitutional since it affects the right to communal property that is guaranteed in articles 70 and 88 of our Magna Carta. Furthermore, in accordance with ILO Convention 169, in order for this norm to be passed the State must consult the communities since they are directly affected.

Legislative Decree 1020:
Promotes agricultural products and the consolidation of rural property for credit. Establishes a framework of norms in order to amplify access to agrarian credit and foment competition and modernization. It creates legal groups that do not constitute legal entities, such as the Agrarian Associative Entities, formed by individual sharecroppers, and it converts them into credit elements, leaving aside their communities. However, these legal groups can compromise the communal property since joint responsibility is extended to the rest of the legal group members that do not have individual property in order to guarantee financial credit. This norm can be understood as an attempt to instigate division of communal property. This decree threatens the integrity of communal property and cultural identity protected in the 1993 Constitution and overall violates the regulations contained in ILO Convention 169 regarding lands.

Legislative Decree 1064:
Establishes a legal regime in order to take advantage of the lands for agricultural use. It directly affects these communities by regulating aspects related to their rights and the activities they carry out. It affects their constitutional rights to property, ethnic and cultural identity and autonomy. It further violates their right to property by eliminating the need to negotiate first with the community in order to give employment rights — for example, when mining or hydrocarbon activities are carried out on communal land. Furthermore, it reduces the protection of communities’ territorial property by establishing that in the event of future conflicts with immigrant settlers who have owned land for more than fours years, the rights of these settlers will take priority.

Legislative Decree 1081:
Creates the national system of water resources. It does not adapt to the reality of the indigenous communities. Within their own organization, the communities have an ancestral right to use and manage their natural resources, including water. Each case is different according to their cultural traditions and geographical environment — for example, using and managing water resources from a river basin in the Amazon is not the same as using and managing water in a river basin on the coast. There is an incompatibility with ILO Convention 169 that establishes provisions regarding the indigenous peoples’ right to access natural resources that are found in their territories. The ambiguity toward the issue of private water management is a grave threat to the indigenous communities.

Legislative Decree 1089:
Establishes an extraordinary temporary regime of formalization and awarding of titles of rural lots. For a period of four years, COFOPRI — the body previously in charge of awarding titles in urban lots — has become the body in charge of formalizing rural property. The sectorial guidelines that the Ministry of Agriculture (previously responsible) used to award titles for rural lands are not the same as those used by COFOPRI. While the Ministry of Agriculture links the awarding of titles to agricultural production, COFOPRI seeks to insert property in an economic market. In this context, formalizing property is linked to the individualization of property. To promote or motivate the individualization of communal property implies violating the right to property in article 88 of the Constitution. Thus, if the State guarantees communal property, it must protect it as such and defend it from individual property or any other kind of property that attempts to substitute it without the communities’ consent. Ending this communal property would mean ending the community and the people, and thus their culture and identity. It is difficult to conceive an indigenous community without communal territory.

Legislative Decree 1090:
Approves the Forest and Wild Fauna Act. Attempts to modify forest legislation, but does not mention the use and exploitation of the forests in native communities. In the norm, the contracts to concede use are left empty. By excluding the nation’s patrimony of forest resources, along with the modification of their use and the amplification of the agricultural frontier, there is a threat to the integrity of indigenous communities’ property as well as their right to cultural identity, their right to participate in their development processes and their right to be consulted. Additionally, this causes a problem of institutionality regarding the elimination of the national Consultation Council of Forest Policy, in which the communities participated.

Legislative Decree 1083:
Promotes efficient exploitation and conservation of water resources. It proposes a certificate of efficiency as a mechanism for certifying efficient exploitation of water, rewarding efficiency with different regimes of economic redistribution. This norm has not considered the communities or their own institutions as users or operators. This would promote users with greater economic resources and greater access to modern technology for water use to be rewarded with more rights to water, and essentially punish those who do not have economic resources.